UK: The Gowlings Guide To The 2012 Games And The Olympic Association Rights

Last Updated: 21 February 2012
Article by Brian Fraser and Susan Vogt

For readers advertising in the United Kingdom during the 2012 Olympic Games, the Gowlings London office is pleased to provide a discussion of the Olympic Symbol etc. (Protection) Act 1995.

The Olympic Symbol etc. (Protection) Act 1995 (OSPA)

The OSPA came into force on September 20, 1995, creating the Olympic Association Rights, which conferred on the British Olympic Association (BOA) exclusive rights in relation to use of the following:

  • The Olympic symbol, which means the International Olympic Committee symbol, consisting of five interlocking rings;
  • The Olympic motto, which is the motto of the International Olympic Committee, "Citius, altius, fortius," and its translation into any language; and
  • Protected words, collectively known as the "Olympic marks," which include "Olympiad(s)," "Olympian(s)," "Olympic(s)" and their translation into any language.

Infringement of the Olympic Association Rights

The OSPA provides for offences relating to the unauthorized use, by any act done in the U.K., that constitutes infringement of the Olympic marks or is done without the consent of the BOA. A person infringes the Olympic marks in the course of trade if he/she uses an Olympic mark, or a representation of something so similar to an Olympic mark as to be likely to create in the public mind an association with it.

Examples of uses of one or more Olympic marks include: affixing them to goods or packaging; incorporating them in a flag or banner; selling, or stocking or exposing for sale, goods that bear them or whose packaging bears them; importing or exporting goods that bear them or whose packaging bears them; offering or supplying services under a sign that consists of or contains them; or using them on business papers or in advertising.

The London Olympic Games and Paralympic Games Act 2006 (the "2006 Act")

Addition and Extension of Rights

The 2006 Act came into force on May 30, 2006, extending the protection of rights under the OSPA to cover Paralympic marks by creating the Paralympic Association Rights, which includes:

  • The Paralympic symbol (the three "agitos" of the International Paralympic Committee);
  • The Paralympic motto "Spirit in Motion" and its translation in any language; and
  • The following words: "Paralympic(s)," "Paralympiad(s)," "Paralympian(s)" and their translation into any language.

The 2006 Act also broadens the scope of the Olympic Association Rights by introducing the London Olympic Association Rights, which confers exclusive rights on the London Organizing Committee of the Olympic Games (LOCOG) to the use of any representation likely to suggest to the public that there is an association between the London Olympics and goods or services or a person who provides goods or services.

According to LOCOG's interpretation of the 2006 Act, a representation that suggests an association is any representation that includes an image, graphic design, sound or word (spoken or written). Images of an Olympic stadium or Olympic parks could also contribute to the creation of an association. For the purposes of the 2006 Act, the concept of an association between a person, goods or services and the London Olympics includes, in particular, any kind of contractual or commercial relationship, corporate or structural connection, or provision of financial or other support for or in connection with the London Olympics.

However, a person does not suggest an association between a person, goods or services and the London Olympics only by making a statement that accords with honest practices in industrial or commercial matters and does not make promotional or other commercial use of a representation relating to the London Olympics by incorporating it in a context in which they are irrelevant.

Application of the Acts

It is important to note that the 2006 Act makes the OSPA, as amended, applicable in the U.K. in relation to the Olympic and Paralympic Games generally, including past and future Games. However, as the OSPA only came into force in 1995, it would be safe to state that it does not apply to any Games prior to that date, since no Olympic Association Rights provisions were in existence prior to 1995.

The factors the courts look at in determining whether an association exists

Whether an association has been created with the London Olympics is a question of fact to be decided in each case. The 2006 Act specifies certain "listed expressions" and provides that a court may take into account the use of a combination of the following two groups of listed expressions when determining if an association has been created:

  • "Games," "Two Thousand and Twelve," "2012" and "Twenty-Twelve"; WITH
  • London, gold, silver, bronze, medals, sponsor and summer.

The use of the above listed words or expressions will not be conclusive. The use must be considered as a whole, as not every use or combination of the listed expressions will create an association. The following is an example of an ad using listed words, which is considered by LOCOG as not creating an association with the London Olympics:

"The Tower of London Gold Jewels Exhibition 2012"

Furthermore, the cumulative effect of using imagery and words other than the ones listed above may be sufficient to create an infringing association.

Several non-infringing examples provided by LOCOG

"Come to the Capital this summer – see the world"

The above advertisement does not in itself create an association with the 2012 Games, but if the ad is run in 2012 and pictures athletes running through London past 2012 Games venues, dressed in national uniform and carrying Olympic-style torches, the ad will create an association with the 2012 Games, despite the absence of the listed expressions.

The depiction of Olympic and/or Paralympic sports

The OSPA does not prevent Olympians or Paralympians from endorsing products, and the appearance of an Olympian in an advertisement will not, by itself, create an association with the Games. However, where an Olympian or Paralympian is used in an advertisement that also uses controlled representations/listed expressions and other Games-related images, there may nevertheless be an infringing association created with the Games for the purposes of the OSPA.

Limits on the Olympic Association Rights/Available Defences

The OSPA lists a number of defences available when an association with the Games has been created. These include:

  • Use of a registered trade-mark in relation to the goods and services for which it is registered;
  • Use of someone's own name or address, in accordance with honest commercial practices.
  • An example given by LOCOG would be "2012 Gold Street"
  • Use indicating quality, quantity, value, geographical origin, time of production or purpose of goods and services, provided such use is in accordance with honest commercial practices.
  • An example provided by LOCOG: "X Brand Whisky — distilled in London, 2012
  • Use when publishing or broadcasting a report or information about the Olympic/ Paralympic Games or movement, and use of incidental inclusion in literary work, dramatic work, artistic work, sound recording, film or broadcast. However, the defence expressly states that it does not benefit advertising material that is published or broadcast at the same time as, or in connection with, such reports or information
    • An example would be a newspaper publishing reports about the 2012 Games
  • Free movement of goods within the European Union, where such goods have already entered the European Union with the consent of LOCOG.
  • Use that has been made continuously since prior to the introduction of the London Olympic Association Rights, including use in business names.
  • Use of design rights and other rights existing prior to the introduction of the London Olympic Association Rights, and use of any registered designs or trade-marks.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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