With the winter Olympics now getting massive media attention, it is perhaps worth pausing to think about that other, non-official Olympic activity – ambush marketing. Indeed a recent threat of litigation by the Canadian Olympic Committee against North Face for ambush marketing is an indicator that the Olympic marketing games are also in full swing.
Like many other major sporting events, the Olympics have become heavily dependent on funding raised through sponsorship programs. The International Olympic Committee (IOC), in fact, has a carefully structured sponsorship program called TOP, which manages Olympic marketing opportunities. Sponsors pay substantial sums of money for the rights to use certain Olympic symbols in tightly controlled ways. What a sponsor is paying for is the right to associate their own brand with the brand values of the Olympics.
The Olympic logos and symbols, used by the Olympic organizers and licensed for use to sponsors, are protected by trademark or Olympic-related legislation. Any company that uses these marks without permission infringes upon these trademark rights. Ambush marketing is a term used to describe marketing practices which attempt to create an association with a major event without the ambushing company having paid for sponsorship rights. However, what distinguishes it from simple trademark infringement is the fact that ambush marketers generally do not use the trademarks of the event organizers. Instead, ambush marketers create associations through more oblique references to the event itself.
The huge amounts of money involved in the organization of major events, and in paying for sponsorships, have led organizations like the IOC to push for legislation to protect specifically against ambush marketing. In fact, it is now no longer possible to succeed in a bid to host the Olympics without a promise to enact anti-ambush marketing legislation. Canada did so for the Vancouver 2010 Olympic Games. Section 4 of the Olympic and Paralympic Marks Act specifically created a “right of association” and two Schedules to the legislation set out lists of common words that might be considered to trigger an illegal association. These words included: gold, silver, bronze, winter, 2010, twenty-ten, Whistler, Vancouver, and Games.
Anti-ambush marketing legislation is controversial. Some of this controversy is discussed by Benoit Séguin and me in a recent article on the subject. (The article is published in a new book titled Intellectual Property for the 21st Century: Interdisciplinary Approaches). It is not clear, for example, that ambush marketing legislation is truly necessary – beyond serving as a ‘comfort blanket’ for event sponsors. Concerns have also been raised that by attempting to outlaw “associations”, such legislation is unduly broad and vague. It also goes far beyond preventing major competitors of event sponsors from launching ambush marketing campaigns leading up to and during the event. For example, such legislation generally applies equally to all businesses, large or small, even if no one would expect a small local business to be a major event sponsor. Such laws limit the ability of small businesses to make even indirect reference to a major event taking place within their own community. This would seem to be a significant – and rather disproportionate -- limitation on freedom of expression. Further, such legislation privileges event organizers over all other stakeholders. Many athletes or national sporting organizations have their own commercial sponsors – indeed, athletes might be unable to train or compete without such sponsors, and national sporting organizations would not be in a position to develop young talent without commercial sponsorship. Yet when an athlete competes in the Olympics, their own commercial sponsors are limited in the extent to which they can celebrate their sponsored athlete’s achievement without running afoul of anti-ambush marketing laws. In another article, my co-authors and I also raise the issue of whether anti-ambush-marketing legislation might actually allow large corporations to put their legal teams to work to exploit loopholes in the legislation, with the result that major competitors of event sponsors are able to launch challenge-proof ambushes, while ‘associations’ created by small and medium businesses lacking the same resources are suppressed by the law.
Part of the problem with anti-ambush marketing laws is that there is a very broad range of conduct that can fall within the ambit of an “association” with an event. Some activity is clearly more problematic than others. In the case of North Face, it would appear that the company launched a new line of red and white, maple leaf flag-emblazoned sportswear in the lead up to the Sochi Games. Although no Olympic logos were used on the clothing, some items apparently featured dates linked to the Games and some promotional materials may have made direct reference to Sochi. The collection was initially called “village wear” and is now referred to as the “international collection”. The characters RU14 also appeared on some items. NorthFace is not, of course, an Olympic sponsor. The matter may never head to court – if it did, it might provide an opportunity for the courts to explore some of the challenging legal questions around the limits of legal protection against ambush marketing.