Take care with advertising for Summer Games
An advertiser's biggest dream is a captive audience and large successful events usually provide the ideal audience for an advertiser to communicate its message. The Summer Olympic Games is ranked by National Geographic as No. 2 on its list of Top 10 Sporting Events. Forbes.com ranked the Summer Olympic Games as the second most valuable sports event brand. In 2010, Forbes.com valued the Summer Olympic brand at US$230 million after the Beijing games reaped US$3.9 billion in revenue. The stated basis for this brand valuation is the amount of revenue generated per day of competition. The top ranked brand was Super Bowl with brand value of US$420 million and the third ranked brand was FIFA World Cup with brand value of US$120 million.
Track & Field is likely ranked in the top 3 most popular sports in Jamaica. It is probably safe to say that every household in Jamaica will be keeping abreast of the Olympic Games July 27 to August 12. Many companies and individuals have already started to utilise the opportunities presented by the build up to the Summer Olympic Games. Many others are still in the starting blocks focused on earning some advantage by marketing during the Olympic season.
A big part of the success of the Olympic brand is fierce brand protection. In the UK, special pieces of legislation have been passed to ensure that there is a sensible framework within which the London Organising Committee of the Olympic Games and Paralympic Games ("LOCOG") is able to grant exclusive advertising rights to sponsors, protect against ambush marketing and protect the various brands of the Olympic Games from infringement by persons who have not paid for rights to use the brands or be associated with the event. The LOCOG also relies on pre-existing laws to protect the integrity of its brands and the event, including copyright law, designs law and trade mark law.
No special pieces of legislation have been passed in Jamaica for the protection of the brands or rights of association with the Olympic Games. Thus, while the LOCOG may be constrained in some instances from taking action against certain activities in Jamaica, for which a remedy would have been available under the special UK legislation, there are still opportunities for enforcement in Jamaica. Additionally, with the Internet (social media in particular) being the mechanism for making the world a truly global village, advertisers may find that it is difficult to keep infringing advertising outside the domain of UK law. Advertisers, beware!
"London 2012","Summer Games", "Olympic" and "Olympian" are a few of the trade marks registered in Jamaica. On the face of it these terms are, therefore, not ordinary English words open to be used by the general public unless referring to the Olympic Games. Thus, if any unauthorised person in Jamaica uses these marks or marks closely similar to them for the furtherance of their business, specifically for advertising their business, goods or services, there may be an infringement of the registered trade marks. Additionally, unregistered marks that have become well known internationally as being associated with or belonging to the organisers of the Olympic Games are entitled to protection in Jamaica. Clear breaches would include selling flat screen TVs "for the Olympic Games"; advertising air condition units as being "perfect to keep you cool for the Summer Games"; or advertising energy drinks to "bring out the Olympian in you".
An infringement may also be found where no particular trade mark is used in advertising. The advertiser may design the advertisement so that it will be reasonably clear to consumers that there is a reference to the Olympic Games. If this advertising message also conveys the misleading impression that the advertiser is associated with the games or was authorised to use the Olympic brands, the law of passing off may provide a remedy for the LOCOG. For example, under the special legislation in the UK, use of the terms "Backing the 2012 Games" or "Supporting the London Games" are likely to amount to infringement. It is arguable that, unauthorised use of similar terms in Jamaica could give rise to passing off because those words communicate clear association with the Olympic Games.
Additionally, copying any Olympic insignia from a website or other published material and reproducing it as a part of an advertisement or emblazoned on any product or publication of an unauthorised person or company is likely to be a breach of copyright. In this regard, advertisers should ensure that they have the requisite authorisations before using the Olympic rings or the London 2012 logo on any congratulatory messages, any newsletters, internal communications and any other publication, including those that will simply seek to capture the pride that we expect to feel when our athletes compete.
There are legitimate ways of advertising during the Olympic season even if you did not pay for broadcasting rights, as CVM TV did, or pay for status as local Olympic Games sponsor as did 3 or 4 local companies. Some companies have endorsement deals with athletes who are known winners of Olympic medals. Based on their contracts with the athletes, those companies are able to advertise and communicate to consumers the positive messages associated with the Olympic Games without actually infringing the Olympic brand. Some companies sponsor the national team and are also able to exploit this secondary association with the Olympic Games. However, note that athletes and all participants in the Olympic Games have obligations under the Olympic Charter which will limit the rights that they are able to grant to advertisers for advertising during the Olympic season. Other companies simply ramp up their advertising activities, probably with a broadcast from London or offer an all expense paid trip to the UK.
During the Olympic season, prudent businesses would be best advised to ensure that all messages, including both traditional advertisements and all other communications from the business and its employees (in their capacity as employees of the company), are scrutinised to ensure that there is no infringement of the brands of the Olympic Games. It is not likely to be acceptable to simply jump on the Olympic band-wagon, feel the Olympic fever or national pride and loosely associate ones business with a brand that has been fiercely protected for centuries. The success of Rio 2016 (already a registered trade mark in Jamaica; website already launched) depends on wide-scale protection of the brand in national territories and in international spaces on the Internet. Advertisers be cautious.
Andrea Scarlett-Lozer is an Associate at Myers, Fletcher & Gordon and is a member of the firm's Commercial and Intellectual Property Department. Andrea may be contacted via email@example.com or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.