From the Winter Olympics to the Commonweath Games: how to avoid the pitfalls of ambush marketing

I flicked onto the BBC at some ungodly hour on Sunday to catch a bit of the snowboard slope style event.

One of the competitors was using a board with the 'Burton' logo in large letters on it. For some inexplicable reason, I couldn't concentrate on the rider—who was placing herself in great peril by launching herself off jumps the size of a small Lake District hill—rather, I was hypnotised by the 'B', 'U', 'R', 'T', 'O' and 'N' screaming at me from the bottom of her board.

Well, the letters weren't screaming as such, they were just in a black and white typeface, to be fair. Nothing crazy there. That said, I couldn't take my eyes off them. Perhaps all I ever want to do as a lawyer is read things? (I've been known to read all of the small print off a packet of corn flakes, but I digress somewhat.)

What it did do (to me at least) was show the power of advertising. Now, this is great news for Burton but perhaps more of a challenge for those that organise large international sporting events and who want to maximise the opportunities for any sponsors—to the exclusion of any non-sponsoring businesses.

Which takes us neatly on to 'ambush marketing'.

First and foremost: what a term! 'Ambush' connotes an ageless and explosively violent military tactic. It suggests cunning. It suggests violence. It suggests bloodthirsty hoards of frenzied warriors massing on scrubby hillsides waiting to pounce on an unsuspecting and docile enemy.

So, I am not entirely convinced that it should be married with the word 'marketing'—but there we are.

So putting aside its lofty name, what is it exactly?

Given that we are taking about the Winter Olympics, let's see what the International Olympic Committee (IOC) has to say:

[ambush marketing is] a planned attempt by a third party to associate itself directly or indirectly with the Olympic Games to gain the recognition and benefits associated with being an Olympic partner

This is probably as good a definition as any.

Now, Burton isn't an official sponsor of the Winter Olympics so was it allowed have its name emblazoned on the boards that it manufactures?

It would seem so. The devil is in the detail of the Guidelines Regarding Authorised Identifications.

These guidelines* state that the identification of the manufacturer can be carried on equipment, 'as generally used on products sold though the retail trade during the period of 12 months prior to the Games'. So if you want to advertise your brand in this way, go BIG (for a year before the Games at least).

That said, companies interesting in promoting themselves shouldn't try to be too clever as there is seemingly an IOC rule for every eventuality, particularly for the athletes (or ‘carbon-based billboards’ as they may soon be known).

For example, don't try to persuade a young snowboarder that it would be a great idea for him to have a tattoo with your company's logo on his neck, or for company-branded contact lenses to be handed out to the female hockey team. These will fall foul of the rules.

What about branded ear plugs? No.

Mouth guards? No.

Nose clips? No.

I could go on.

Frankly, however, this is all a bit academic to advertisers in the UK as it is probably a tad late if you are thinking about a Winter Olympics marketing strategy.

However, there are many more opportunities in the future including, most importantly for UK businesses, the XX Commonwealth Games that are going to be held in Glasgow from 23 July 2014 to 3 August 2014.

Like the London Olympics of 2012, the organising committee of the Glasgow Games (OC) have a number of legal tools at its disposal to combat ambush marketing including the Glasgow Commonwealth Games (Trading and Advertising) (Scotland) Regulations 2013. If you are looking to advertise during the Commonwealth Games, you would do well to consider these regulations carefully.

Effectively the regulations state that anyone who engages (whether as an advertiser, owner of the land or the person actually undertaking the advertising, eg an agency) in advertising which includes any of the following in an event zone during a prohibited time will fall under the 2013 Regulations and will require specific authorisation from the OC: billboard advertising, posters, flyers, giveaways, projected advertising, moving and aerial advertising.

It doesn't matter whether you are on public or private land.

During the London Olympics the head of the IOC said that 'common sense' would prevail but that 'really blatant' attempts at ambush marketing would be challenged'. It remains to be seen whether this will be the approach of the OC. I reckon that erring on the side of caution would be a sensible approach but, then again, I am a lawyer so I would say that.

Don't forget that the OC have also registered various trademarks such as 'Glasgow 2014'. Equally, if you fancy donning a snazzy kilt for the occasion, bear in mind that the Glasgow 2014 tartan is a registered design. The Games' ticket terms and conditions are likely to restrict ambush marketing and the entry conditions of the participants are likely to do so too.

Businesses should also consider the 'Glasgow 2014 Association Right' which means that the OC can stop anyone from creating associations with the Games without authorisation (unless a defence applies). Final guidance can be found here.

As for enforcement—the key issue perhaps—this is dealt with, not in the regulations, but the Glasgow Commonwealth Games Act 2008 (of the Scottish Parliament). Officers of the OC have the power to take steps to prevent or stop something which they consider to be a Games offence. This includes the ability to seize infringing articles.

So there you go. Advertising is still possible during major sporting events but it can be a bit of a legal obstacle course. Checking and double-checking the rules would certainly do an advertiser no harm, including the OC's rules and any local and national legislation. Taking robust legal advice from experienced advertising lawyers is highly advised!

In the meantime, enjoy the Olympics folks. And don't be as sad as me, staring at the underside of snowboards for hours. It’s not worth it.

* The guidelines refer to skis as the FIS (International Ski Federation) is the governing body for snowboarding. (Snowboarding is regarded as a discipline of skiing and not its own sport.)

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