This House believes Corporations’ Use of IP Laws in Relation to Event Sponsorship Poses a Threat to
The discussion: Guilt by association: the London 2012 Olympics
The drive to control all references to the Olympic Games is part of a global creep of intellectual property law that has led to a "right of association", writes Teresa Scassa.
The Olympic Games will take place in London in the summer of 2012. This innocuous factual statement contains four words (underlined) that are on a list of words that raise a presumption of ambush marketing under the London Olympic Games and Paralympic Games Act. In its guidebook for non-commercial entities who might happen to reference the Games, the London Olympic Games Organising Committee (LOGOC) warns that magazine or web-posted articles about the games are “normally permitted”, but that “a book, magazine or website focusing on the Games or London 2012 will need approval”. Factual statements about the Games are “acceptable” as long as they do not place emphasis on protected words.
The drive to contain, control, and restrict expression that directly or indirectly references the Olympic Games is part of the larger global creep of intellectual property law that has led to the recognition of a “right of association”. This right gives event organisers an intellectual property interest in their event that allows them to control “associations” with the event. The result is a chill on expression that is hardly mitigated by the plethora of guidance documents and other publications that, in the case of the London Olympics, LOGOC has produced to inform businesses, non-profits, conference organisers, betting and tourism operators about what they can and cannot say on signs, websites, brochures and other promotional materials.
Of course, Britain is not alone in enacting laws and regulations that prohibit “associations”. Such legislation is now required by the International Olympics Committee (IOC) as a condition of a successful Olympic bid. It is also increasingly common in relation to other major sporting events as well (see, for example, New Zealand’s Major Events Management Act). Significantly, the commitment to pass such laws is made during the bidding process and in a context where there is little or no public awareness, debate or input.
It is not surprising that the UK laws are among the most sweeping seen thus far; there is a general trend towards broader and more extensive anti-ambush marketing legislation from one Olympic event to the next. It is worth noting that when the law was debated in parliament, the minister for sport expressly admitted that the “right of association” was drafted in the broadest possible terms because there was no consensus as to what type of conduct it was meant to catch and because the future demands of the IOC for a legal response might change.
The regulations passed pursuant to the law are also cast in broad terms. The definition of advertising includes just about any kind of message placed in any location that is “wholly or partly for the purpose of promotion, advertisement, announcement or direction”. It expressly captures the display of messages on a human or animal body, having a human or animal carry anything on which an advertisement is displayed, or wearing advertising attire. Going for a walk in a designated zone near an event venue with a trademark logo face-painted on one’s cheek, or walking one’s dog with a doggy blanket emblazoned with a non-sponsor’s soft drink logo would infringe the regulations if the person had “reasonable cause to believe that they are participating in an ambush marketing campaign”. Sound ridiculous? Just ask the Dutch women who were arrested in South Africa under anti-ambush marketing laws after they attended a FIFA World Cup football match wearing orange dresses supplied to them by a Dutch brewery.
Major event organisers will insist that anti-ambush marketing laws are necessary to ensure fiscal success. Complex events such as the Olympics have elaborate sponsorship regimes ranging from top sponsors to a web of official suppliers of particular wares or services. Top sponsors pay millions of dollars for sponsorship rights, and organisers maintain that these revenues are essential to properly fund the event. The sponsor who pays such substantial sums of money wants a guarantee that the exclusivity they have paid for is respected; they do not want their competitors to be able to leverage the public excitement or interest around the event for their own purposes and without paying for the right to do so.
“Ambush marketing” is a term developed in business circles to describe a range of opportunistic marketing practices that have long been a major irritant for event sponsors. An ambush marketer runs an advertising campaign that creates an association between their product and the major event. It is not necessary for the advertiser to create confusion as to their status as a sponsor; it is the mental association the consumer makes with an event that is considered problematic. For example, when Visa was the sponsor of the Barcelona Olympics, a rival credit card company launched a series of ads that exhorted consumers to remember “that you don’t need a visa to visit Spain”. Ambush marketing has been difficult to stop using traditional IP laws because ambushers are careful not to use the trademarks of either their rivals or the event itself. Although some argue that there is an unfair competition dimension to such activities, the actual harm is elusive. It is not clear that consumers are confused about who is a sponsor and who is not; nor is it clear that consumers make choices based on sponsorship status. It is also difficult to establish that the value of sponsorships is tied to the existence of this kind of legislative protection. By contrast, research suggests that the value of a sponsorship is more closely tied to the sponsor’s own efforts to leverage the association for which they have paid through effective advertising campaigns.
Yet in spite of the existence of anti-ambush marketing laws, ambush marketing by the major competitors of event sponsors remains common. Major corporations have easy access to legal departments that can find the loopholes to effectively exploit in advertising campaigns. For example, in the case of the Vancouver 2010 Winter Olympics, competitors of major sponsors determined that the legislation against ambush marketing did not limit displays of national pride. They launched high profile advertising campaigns that played on this theme (Go Canada!) to get their piece of the Olympic spotlight. While major corporations will find ways around legislation, it is the small and local businesses that are most directly affected. The local restaurant that offers gold, silver or bronze breakfast specials during the Olympics will be among those least able to fight the cease and desist letter they will inevitably receive.
By creating property-like rights in major events, governments have further shrunk the already embattled public domain and have contributed once again to the creeping propertisation of just about anything. Major events are multi-stakeholder public spectacles. There is something fundamentally important about the ability of these stakeholders – governments, community members, local businesses, taxpayers, citizens, athletes and amateur sporting organisations – to make reference to a public event that involves and impacts them in various ways. By aiming to control event-related narratives in public and commercial spaces, ambush marketing legislation places a chill upon expression that extends far beyond what is genuinely needed to protect the value of sponsorships.
Teresa Scassa is Canada research chair in information law at the University of Ottawa.
Points For
Governments and corporations have been complicit in an effective ‘privatization of language’.
Recent developments in IP legislation, particularly in the UK, have given corporations a carte blanche with regards to protecting their claim on associations with events they are sponsoring. The Olympics, for example, has required vastly more investment from the taxpayer than from any sponsor[i] [ii] and yet those very taxpayers have been prevented from using associations with the event to their advantage. The build-up to the games saw the international media full of stories of small businesses and others banned from using the logo or name of the games for their own advantage[iii]. Sponsors may have ploughed in millions but the taxpayers has invested billions, many of them will see precious little return on that investment and this is exacerbated by the official sponsors buying those terms. Effectively government has conspired with corporations to own chunks of language which morally, linguistically and financially can be said to belong to the public.
Nobody would challenge the right of sponsors to proudly promote their bought association with an event they are sponsoring and to use all of the means at their disposal to declare that association to the world, which they have done. However, there is a world of difference between the positive right to proclaim a particular association and the negative right to prevent anyone else from proclaiming theirs. Of course sponsorship should provide bragging rights and privileged access but that is a world away from buying the silence of others.
[i] London 2012 Olympic Sponsors List: Who Are They And What Have They Paid? Simon Rogers. The Guardian. 19 July 2012.
[ii] London Olympics Could Cost Taxpayer $17Bn. Fred Drier. Forbes Magazine. 10 March 2012.
[iii] Even Sausage Rings Are Put on The Chopping Block. Jere Longman. New York Times. 24 July 2012.
COUNTERPOINTIt is a massive overstatement to say that recent events are equivalent to the privatization of language. Were people to be charged every time they used the word “Olympic”, say, that would look like the privatisation of language, this is merely sponsors protecting the association with an event that they paid for in the first place.
Additionally, to portray this as a conspiracy raises the question of, “To what end?” Government works with major organisations as partners all the time, precisely because it saves the taxpayer money to do so. Although the taxpayer has footed a significant bill for the games, it would have been that much larger without sponsors and it is the taxpayer, not the sponsors, who receive the infrastructural benefits, which is what they paid for. The sponsors receive promotion for their brands, which is what they paid for. It’s a simple quid pro quo. Other companies trying to muscle in on the act have paid for nothing – and that is just what they should get.[i].
Those unable to respond will be worst hit
Smaller businesses and other organisations see their freedom of expression worst hit by laws that prevent them from associating themselves in any way with major events, to the detriment of their communities. Free speech is not relative or conditional and certainly should not be determined on the basis of the thickness of someone’s chequebook. In this regard, freedom of information is a very real issue. Those organisations without access to huge legal departments are hardest hit, further disadvantaging them against corporations who can already outspend them on advertising. Free speech means that in the world of words and ideas, at least, there is an even playing field and undermining that runs against a sense of natural justice.
Sponsors are simply using this to increase an already fairly unfair advantage; many people supported Britain’s bid for the games on the basis that it would offer great benefits to local businesses, legislation restricting their ability to use their geographical and cultural association with the event make that pledge look extremely hollow.
One of the noticeable failings of the Games is just how little positive impact they have had for small business in East London where most of the events are being held added to this, 62% of small businesses think the games will have no impact while 25% believe the impact will be negative[i] and business outside the capital have actually suffered as a result[ii].
The major sponsors already went into this situation with massive advantages over small traders who had the sole advantage of the geographical proximity to the events. The idea that, for example, Coca Cola can prevent street vendors in the Olympic Village from selling Pepsi is absurd. Coke isn’t planning to make their money back on direct sales of their product around venues but on the prestige it brings them as a global brand.
[i] FSB News Release, ‘Olympics legacy will be damp squib for small firms’, Federation of Small Businesses, 9 January 2011.
[ii] Now Retailers Outside London Suffer From Olympics Effect. Simon Neville. The Guardian. 3 August 2012.
COUNTERPOINTIt is important not to confuse two issues. The ongoing ‘Battle of the Brands’ between, for example, Coke and Pepsi or McDonalds and Burger King are the focus of the sponsors. It really seems unlikely that the directors of McDonalds lose a lot of sleep over competition from a family butcher in Dorset. The problem has come because the butcher is caught in the crossfire. It’s worth noting that that butcher has received the sort of media coverage that money really can’t buy, so he’s probably not complaining too much. It may have been wise to draft the legislation so that it only applied to companies of a certain size but, in reality, it only affects large-scale efforts to circumvent the rules.[i]
[i] London 2012: Organisers clarify rules on branded clothing for spectators. BBC website. 20 July 2012.
This creates a dangerous precedent
The idea that corporations can, effectively, buy words and phrases set a pernicious precedent similar to their ability to own genes. There are certain things that, self-evidently, are the property of the people. They are held in common and in trust for future generations. They cannot be sold because they are not owned. Attempts to evade that reality have, generally, been seen as pernicious by history – even where they have not been rectified. European settlers laying claim to land used by indigenous people would be one example.
Recent attempts by pharmaceutical companies to purchase genes[i] and now other Corporations to own chunks of the language – or at least rent them from governments and NGOs that also don’t own them in the first place - seems to come in a similar spirit.
Who can reasonably be said to own, for example, the phrase “London 2012”? If anybody could make such a claim, Londoners living in the city in 2012 would seem to be the obvious answer. However, there is a far more satisfying answer that nobody does.
The London Olympic Games and Paralympic Games Act 2006 extends the scope of protection given to the Olympic and Paralympic Games by making it an infringement of the “London Olympic Association Right” (LOAR) to do anything which is “likely to create in the public mind an association” with the London Olympics[ii].[iii]
The fact that this is happening in relation to the Olympics makes the precedent particularly troubling as the idea that the Games are for all mankind is at the heart of the Olympic ideal. It is an aspiration of our common humanity and all that entails. If chunks of that are for sale then it raises very real concerns about what else could go under the hammer.
[i] Noonan, Kevin ed., ‘This House would allow the patenting of genes’, Debatabase, 2011.
[ii] International Trademark Association.
[iii] Davies, Malcolm, ‘Intellectual Property and the London 2012 Olympic Games - What businesses need to know’, Intellectual Property Office, November 2009.
COUNTERPOINTThis is clearly not the same as buying a gene as the timescales are quite different. These are not words sold off in perpetuity, neither were they previously in use by someone else as was the case with land grabs by colonizing settlers. This is a description of an event that would not have taken place without the sponsorship for the duration of that event. Both of the other examples are of the permanent acquisition of something that was previously communal property.
Points Against
Governments and corporations have been complicit in an effective ‘privatization of language’.
Recent developments in IP legislation, particularly in the UK, have given corporations a carte blanche with regards to protecting their claim on associations with events they are sponsoring. The Olympics, for example, has required vastly more investment from the taxpayer than from any sponsor[i] [ii] and yet those very taxpayers have been prevented from using associations with the event to their advantage. The build-up to the games saw the international media full of stories of small businesses and others banned from using the logo or name of the games for their own advantage[iii]. Sponsors may have ploughed in millions but the taxpayers has invested billions, many of them will see precious little return on that investment and this is exacerbated by the official sponsors buying those terms. Effectively government has conspired with corporations to own chunks of language which morally, linguistically and financially can be said to belong to the public.
Nobody would challenge the right of sponsors to proudly promote their bought association with an event they are sponsoring and to use all of the means at their disposal to declare that association to the world, which they have done. However, there is a world of difference between the positive right to proclaim a particular association and the negative right to prevent anyone else from proclaiming theirs. Of course sponsorship should provide bragging rights and privileged access but that is a world away from buying the silence of others.
[i] London 2012 Olympic Sponsors List: Who Are They And What Have They Paid? Simon Rogers. The Guardian. 19 July 2012.
[ii] London Olympics Could Cost Taxpayer $17Bn. Fred Drier. Forbes Magazine. 10 March 2012.
[iii] Even Sausage Rings Are Put on The Chopping Block. Jere Longman. New York Times. 24 July 2012.
COUNTERPOINTIt is a massive overstatement to say that recent events are equivalent to the privatization of language. Were people to be charged every time they used the word “Olympic”, say, that would look like the privatisation of language, this is merely sponsors protecting the association with an event that they paid for in the first place.
Additionally, to portray this as a conspiracy raises the question of, “To what end?” Government works with major organisations as partners all the time, precisely because it saves the taxpayer money to do so. Although the taxpayer has footed a significant bill for the games, it would have been that much larger without sponsors and it is the taxpayer, not the sponsors, who receive the infrastructural benefits, which is what they paid for. The sponsors receive promotion for their brands, which is what they paid for. It’s a simple quid pro quo. Other companies trying to muscle in on the act have paid for nothing – and that is just what they should get.[i].
Those unable to respond will be worst hit
Smaller businesses and other organisations see their freedom of expression worst hit by laws that prevent them from associating themselves in any way with major events, to the detriment of their communities. Free speech is not relative or conditional and certainly should not be determined on the basis of the thickness of someone’s chequebook. In this regard, freedom of information is a very real issue. Those organisations without access to huge legal departments are hardest hit, further disadvantaging them against corporations who can already outspend them on advertising. Free speech means that in the world of words and ideas, at least, there is an even playing field and undermining that runs against a sense of natural justice.
Sponsors are simply using this to increase an already fairly unfair advantage; many people supported Britain’s bid for the games on the basis that it would offer great benefits to local businesses, legislation restricting their ability to use their geographical and cultural association with the event make that pledge look extremely hollow.
One of the noticeable failings of the Games is just how little positive impact they have had for small business in East London where most of the events are being held added to this, 62% of small businesses think the games will have no impact while 25% believe the impact will be negative[i] and business outside the capital have actually suffered as a result[ii].
The major sponsors already went into this situation with massive advantages over small traders who had the sole advantage of the geographical proximity to the events. The idea that, for example, Coca Cola can prevent street vendors in the Olympic Village from selling Pepsi is absurd. Coke isn’t planning to make their money back on direct sales of their product around venues but on the prestige it brings them as a global brand.
[i] FSB News Release, ‘Olympics legacy will be damp squib for small firms’, Federation of Small Businesses, 9 January 2011.
[ii] Now Retailers Outside London Suffer From Olympics Effect. Simon Neville. The Guardian. 3 August 2012.
COUNTERPOINTIt is important not to confuse two issues. The ongoing ‘Battle of the Brands’ between, for example, Coke and Pepsi or McDonalds and Burger King are the focus of the sponsors. It really seems unlikely that the directors of McDonalds lose a lot of sleep over competition from a family butcher in Dorset. The problem has come because the butcher is caught in the crossfire. It’s worth noting that that butcher has received the sort of media coverage that money really can’t buy, so he’s probably not complaining too much. It may have been wise to draft the legislation so that it only applied to companies of a certain size but, in reality, it only affects large-scale efforts to circumvent the rules.[i]
[i] London 2012: Organisers clarify rules on branded clothing for spectators. BBC website. 20 July 2012.
This creates a dangerous precedent
The idea that corporations can, effectively, buy words and phrases set a pernicious precedent similar to their ability to own genes. There are certain things that, self-evidently, are the property of the people. They are held in common and in trust for future generations. They cannot be sold because they are not owned. Attempts to evade that reality have, generally, been seen as pernicious by history – even where they have not been rectified. European settlers laying claim to land used by indigenous people would be one example.
Recent attempts by pharmaceutical companies to purchase genes[i] and now other Corporations to own chunks of the language – or at least rent them from governments and NGOs that also don’t own them in the first place - seems to come in a similar spirit.
Who can reasonably be said to own, for example, the phrase “London 2012”? If anybody could make such a claim, Londoners living in the city in 2012 would seem to be the obvious answer. However, there is a far more satisfying answer that nobody does.
The London Olympic Games and Paralympic Games Act 2006 extends the scope of protection given to the Olympic and Paralympic Games by making it an infringement of the “London Olympic Association Right” (LOAR) to do anything which is “likely to create in the public mind an association” with the London Olympics[ii].[iii]
The fact that this is happening in relation to the Olympics makes the precedent particularly troubling as the idea that the Games are for all mankind is at the heart of the Olympic ideal. It is an aspiration of our common humanity and all that entails. If chunks of that are for sale then it raises very real concerns about what else could go under the hammer.
[i] Noonan, Kevin ed., ‘This House would allow the patenting of genes’, Debatabase, 2011.
[ii] International Trademark Association.
[iii] Davies, Malcolm, ‘Intellectual Property and the London 2012 Olympic Games - What businesses need to know’, Intellectual Property Office, November 2009.
COUNTERPOINTThis is clearly not the same as buying a gene as the timescales are quite different. These are not words sold off in perpetuity, neither were they previously in use by someone else as was the case with land grabs by colonizing settlers. This is a description of an event that would not have taken place without the sponsorship for the duration of that event. Both of the other examples are of the permanent acquisition of something that was previously communal property.
Sponsors pay for the privilege
Sponsors pay an enormous amount of money to support events such as the Olympics, it is only fair that they can protect themselves against ‘ambush advertising’ by competitors. This is an issue of simple financial reality. Although there have been some unpleasant – and probably unwise – accounts of smaller traders getting caught up in the crossfire, and opposition concedes that should be rectified in future events – the purpose of this kind of legislation and the regulations it spawns is to prevent direct competitors of sponsors finding ways to ambush the event[i].
The issue of concern is not really a lone athletics fan wandering into the final of the Men’s 100m with a can of Pepsi. The intention is clearly to prevent representatives of that company standing outside the venue handing out thousands of free T-shirts.
There have been some problems with the implementation of this legislation but the principle remains sound and serves to the benefit of all. The alternative would be both Coke and Pepsi reps handing out T-shirts outside and the organisers of the event not getting a penny from either. It is only fair that those who pay the piper to a certain extent get to call the tune.
[i] London 2012: Coe Sparks Olympic Sponsorship Row. Shiv Malik. The Guardian. 20 July 2012.
COUNTERPOINTIt would be nice to think that, at least at some level, sponsors offer sponsorship out of a desire to give something back to the customers who create vast profits for them but perhaps that is naïve. Ultimately, however, this exercise in ownership has been counter-productive. It would be difficult to imagine an ‘ambush advertising’ action that would come close to inflicting the damage on corporate reputations that the bad press surrounding this issue has generated. From the point of view of sponsors, this was a real example of the best getting in the way of the good. The net result has been that nobody has benefitted as they could have if the sponsors had not been so set on exclusivity of association.
There is a clear difference between protecting commercial interests in terms of association with a sponsored event and ‘owning words’.
It would be both illegal and impractical for a sponsor to ‘buy’ the word “London”. The rules make it clear that they are not attempting to infringe on, for example, the right of journalists to report the Games nor on people to discuss them. A simple Google search will bring up thousands of articles – like this one – using the Olympic rings, the phrase “London 2012” and many of the others words and phrases that concern Proposition. At no point have the news organisations concerned been asked to pay. There is clearly a world of difference between an existing magazine running a feature about the event – indeed several features – and the creation of a one-off special publication stuffed full of advertising for a direct competitor of the event.
An equivalent would be paying for a meal in a restaurant only to see that everyone else was eating for free. That is the infringement of natural justice. Sponsors have paid to have a certain association with the Games and it is both fair and reasonable that they should get that association in a way that does not allow their competitors to get a free lunch.
It is ridiculous to suggest that this is tantamount to ‘owning words’ as Proposition has done. To start with the preclusions cited here are temporary, additionally they are only in reference to this event. It would seem to be in everyone’s interest for sponsorship of sport and the arts to continue, for that to happen, they sponsors need to get something in return.
COUNTERPOINTThere are examples of Journalists running foul the Olympics and its partners. The most famous being Guy Adams, whose Twitter account was suspended following criticism of NBCUniversal’s coverage of the event. Although NBC are a media partner rather than a sponsor, they paid $1.8bn for the media rights and the principles of belligerent protectionism would still seem to apply[i]. Even if it is just for the duration of the Games, even if it is for one day of them, or one minute of them, this would still be an attack on the freedom of speech of the individuals concerned. By its nature, freedom of speech is indivisible, we either have it or we don’t; the pretence that it is possible to say that ‘people are free to say whatever they like, apart from this’ completely misses that point.
[i] Journalists Twitter Account Restored After Suspension. BBC Website. 30 July 2012.
Sponsorship is necessary to host major sporting events
It is in the interests of communities and countries to attract sponsorship for events on this scale, as with other areas, such as transport, that requires a little sacrifice. Hosting major events, inevitably, requires some degree of inconvenience for those living in the area trying to go about their daily lives. These inconveniences are tolerated because there are wider benefits. In the instance of the Olympics, a core part of the initial bid was the assumption that hosting them would produce long term benefits for the city in the form of tourism[i] and regeneration.[ii] Whether that proves to be the case remains to be seen although, given the number of historic venues used for events[iii], it doesn’t seem unreasonable to suppose that it may be likely.
To ensure these future benefits, there is an understanding that there will be some disruption caused and some inconvenience, allowing sponsors a degree of autonomy is comparable to that inconvenience.
LOCOG argues without the sponsors “investment the Games wouldn’t happen.”[iv] Without the Games the future benefits wouldn’t happen – quite the reverse if they simply fell apart after the bid had been won. The smaller traders who feel aggrieved now are exactly the people who will benefit for years to come as people make use of the new facilities or see London as a tourist destination they would not otherwise have considered. It’s a simple quid pro quo.
[i] Woodman, Peter, ‘London 2012: Olympic boost to retailers and tourism new figures show’, The Independent, 6 August 2012.
[ii] ‘Regeneration and economic growth Olympics legacy’, Communities and Local Government, accessed 9th August 2012
[iii] London Olympics: Some Events Set Amid Historic City Landmarks. LA Times. 27 July 2012.
[iv] London Organising Committee of the Olympic Games and Paralympic Games Limited, ‘Rule 40 Guidelines’, July 2011, p.6.
COUNTERPOINTAll of the other inconveniences mentioned by Opposition have been mitigated as much as possible by the organisers. For example local government and transport bodies have been providing advice and encouragement on arranging different routes and minimizing the need to travel at all for months in advance of the games. In this matter however, the organizers and elected officials have come down firmly on the side of sponsors. The very inconveniences outlined by Opposition are already hurting some traders as people choose to work from home or take the opportunity to leave the city altogether. Denying those traders every opportunity to recoup the lost revenue from their regular clientele is, as a result, doubly unfair.
Have a good for or against point on this topic? Share it with us!
