Faster, Higher, More Strong Arm: London 2012 Intellectual Property enforcement

Faster, Higher, More Strong Arm: London 2012 Intellectual Property enforcement

2012/8/13

One element of the Olympic Games held in London which has gathered a lot of criticism is the strategy which the organisers have used to prevent anyone other than official sponsors making any reference or connection to the event. However, if one examines the actual law regarding this, the question arises as to whether people have been scared out of legitimate activities by a paper tiger, or if civil liberties have been curtailed for private interests.

Although much of the reporting has been about “copyright” in fact very little of the intellectual property associated with the event has in fact been protected under copyright.

The first piece of legislation to look at is the Olympic Symbol etc. (Protection) Act 1995. This creates a particular type of Intellectual Property right “the Olympics association right”, which is a quasi-trademark over the use of certain words listed in s18 (such as “Olympic” and the motto “Citius, altius, fortius”, any translations of the words, as well as the Olympic symbol of five interlocking rings in favour of to the Olympics association. These rights cannot be trademarks per se as the Olympic games are not a trade, business or profession but the effect of the Act grants much the same rights as a trade mark holder would have.

There are specific provision allowing the continued use of the specified words if they have been use prior to coming into force of the Act (s4). Therefore e.g. if one were operating an business “Olympic Café” prior to 1995, one would not be required at law to change the name; of course if one did change the name this would break the continual use since prior to the coming into the effect of the act specified by s4(11).

Likewise one can use representations for non-commercial purposes, and for reporting on events; thus for example one could sell a magazine containing a report of a competitors reminiscences of a previous games without falling foul of this Act.

So much for the general rights. However there is specific legislation for the London 2012 games, the London Olympic Games and Paralympic Games Act 2006 (as amended) and the regulations created thereunder. This is not a masterpiece of the draftsman’s art, but to be fair neither are many Acts in the past few decades.
Schedule 3 of the 2006 Act makes certain amendments to the 1995 Act, but the only change of general significance is the created of equivalent “Paralympic association rights”.

Likewise schedule 4 of the 2006 Act creates a “London Olympics association right” but this is significantly different from the Olympic and Paralympic rights. This right is defined as:
“the London Olympics association right, which shall confer exclusive rights in relation to the use of any representation (of any kind) in a manner likely to suggest to the public that there is an association between the London Olympics and (a)goods or services, or (b) a person who provides goods or services.”

Now this is not analogous to any existing form of Intellectual Property right. If one moves on to the next clause, one discovers that this right is only infringed where a person in the course of trade makes such a representation in relation to themselves.

Therefore in effect we have a provision seeking to prevent misrepresentation in advertising not the massive right of censorship that appears at first glance.

There is then the infamous list of words, not as represented by certain parties of prohibited words, but in fact words which a court is to take into consideration in determining if a representation in the course of trade is attempting to make a false representation of an association between the goods, services or business in question and the London Olympics. It would be entirely possible for every single word in the list to be used and still have a court decide no false representation has been made.
There are also express exemptions permitting the use of terms “in accordance with honest practices”, so Mr London, Goldsmith at Olympic House, should have no problems. It does cause a potential issue for suppliers to the games who are not permitted to advertise that their goods or services have been used, but that presumably is a matter for negotiation of the supply contract.

S.19 of the 2006 Act provides that the Secretary of State (or Scottish Ministers in Scotland) may make regulations “about advertising in the vicinity of London Olympic events”. Breach of these regulations are made a criminal offence in terms of s.21. Similarly s.25 permits regulations “about trading in the vicinity of London Olympic events” with s.27 making breach an offence. In both cases provisions allow not only police but “enforcement officers” appointed by the Olympic Delivery Authority QuANGO to enter premises where they reasonably believe an offence under these provisions is being committed and remove infringing items.

This being so, we must look at the regulations to see what these prescribe. In Scotland we have the The London Olympic Games and Paralympic Games (Advertising and Trading) (Scotland) Regulations 2011. This specifies the area affected by the regulations as being “the Event Zone” which is an area around Hampden specified on a map. So the whole rest of Scotland can ignore these regulations. Within this area unauthorised advertising is not permitted, with exemptions: Regulation 7 allows demonstrations provided that they are not promoting commercial goods or services -promoting not for profit bodies goods or services is permitted; Regulation 8 allows personal attire to have advertising “unless the individual knows or had reasonable cause to believe that he or she is participating in an ambush marketing campaign”.

Turning to the English regulations, there are significantly more areas specified as being an “Event Zone”, but again the same exemptions are specified. Therefore any government minister suggesting one cannot enter a venue wearing for example a t-shirt displaying the name of ones preferred soft drink, and well as trainers manufactured by someone other than an official sponsor is patently in error, unless someone is organising that you should do so.

It is noticeable that with all the stories of traders forced to comply with requirements of the games organisers, those few who have stood their ground (notable example Paddy Powers, bookmakers) have not been subject to legal enforcement. Arguably the heavy handedness of the organisers has tarnished the reputation of both the games and their sponsors unnecessarily and provided additional free advertising to rival businesses. A few lessons can be taken from this: for businesses, don’t rely on what someone who want you to do something tells you the law is, take independent legal advice; for sponsors of events, remember the actions of the event organisers rub off on you whether that is for good or for ill; for organisers of events, using strong arm tactics to achieve more control than the law gives you do not go down well with people who would otherwise support you. Hopefully the organisers of the Glasgow 2014 Commonwealth Games can learn from the mistakes in London.

(Source: firmmagazine)




People watch


It is lucky for Chen Jun to began his career in the IP industry 14 years ago when the first group of IP managers for businesses appeared on the stage in China and he has been in the industry.

It was this “Whampoa Military Academy” for IP that educated China’s first batch of corporate IP management personnel. Many of these engineers left Foxconn in the years since.