Out-Law Analysis | 09 Jun 2014 | 10:15 am | 4 min. read
The Games begin in Glasgow on 23 July with events at Hampden Park, in the streets and in newly built facilities across the city.
Companies will be tempted to use the Games to promote their business, but restrictions apply to Commonwealth Games themed advertising and it is not just Glasgow businesses that are subject to the rules. Businesses all across the UK must familiarise themselves with what they can and cannot do. Heavy fines are among the penalties organisations could face if they act in breach of the rules.
Association with the Games – what is prohibited?
When the Commonwealth Games Federation awarded Glasgow the right to host the 2014 Commonwealth Games back in 2007 it required legislation be put in place to help protect against the unauthorised use of logos, branding and certain terminology associated with the Commonwealth Games.
The aim of the restrictions is to ensure only official sponsors that provide funding and support for the Games can use the official Games branding and marketing terms to associate themselves with the Games.
The Glasgow Commonwealth Games Act 2008 (Games Association Right) Order 2009 creates a right for organisers to prohibit unauthorised associations with the Glasgow 2014 Games and take action against organisations that flout the rules.
Businesses that use "any representation" of goods or services they offer "in a manner likely to suggest to the public that there is an association between the Glasgow Commonwealth Games and the goods or services; or the person who provides the goods or services" could be subject to a range of penalties, including an order to pay damages and the destruction of their infringing goods.
An infringing 'representation' could range from the way a product or service is packaged, to the way it is portrayed on a flag, or more generally just how it is advertised.
Organisers have said that the use of certain words such as 'Games' alongside others such as '2014', 'Glasgow', 'Gold', or 'Sponsors' in marketing goods or services is likely to constitute an infringement of the 2009 Order. This is not an exhaustive list of prohibited word combinations, however.
Some limited defences apply which allow businesses to escape liability for infringement in certain circumstances. In particular, businesses that can show that they have been representing the goods or services they sell in a particular way prior to the Order taking effect on 20 January 2010 can continue to represent them in that way throughout the build up to, and duration of, the Games.
Media organisations also have a limited right to use Glasgow 2014 branding or otherwise associate themselves with the Games if the activity is purely editorial and for journalistic purposes.
The provisions under the Glasgow Commonwealth Games Act 2008 (Games Association Right) Order 2009 continue to apply for six months after the Games finish on 3 August this year.
Trading and marketing restrictions in Glasgow, Edinburgh and Dundee
Specific legislation has also been introduced which creates 15 designated 'event zones' in and around Glasgow and one each in Edinburgh and Dundee. The 'event zones' specify areas in which trading and advertising activities are subject to restrictions during set periods during the Games.
In one example, outlined in the Glasgow Commonwealth Games (Trading and Advertising) (Scotland) Regulations 2013, unauthorised trading and advertising within the Hampden Park Precinct is prohibited from 23 July to 3 August 2014 inclusive. Only trading and advertising that is sanctioned by the Games organisers Glasgow 2014 Limited is permitted during this area at this time.
Other event zones have their own timeframes for the restrictions.
The restrictions seek to prohibit 'ambush marketing', which is defined as "a campaign (whether consisting of one act or a series of acts) intended specifically to advertise within an event zone during a prohibited time [either] a good or service; [or] a person who provides a good or service".
Ambush marketing is a real problem for event organisers and was most famously seen when a group of women dressed in orange attended a football World Cup fixture involving the Netherlands and promoted the Bavaria drinks brand. Bavaria was not an official sponsor of the competition.
As advertisers get more creative in their methods, the rule makers have had to respond. The general 'ambush marketing' prohibition covers cases where advertising is displayed on individuals' personal property, on items they are wearing, and even on their body, within the event zones during the set times. It also applies to advertising via a variety of other mediums, including images, sounds and light, as well as on placards, flags and signs, among other examples.
The rules contain exceptions to allow the public to participate in demonstrations or commemorate events, for example, whilst it also makes it clear that advertising on personal property, clothing or the human body will be permitted "unless the individual knows or had reasonable cause to believe that he or she is participating in an ambush marketing campaign".
Some simple dos and don'ts
The restrictions on the association rights are very broad, so businesses should avoid using terms in their marketing materials such as 'supporters of the 2014 Games', or 'going for gold in 2014'.
In addition, organisations should avoid hosting events with a Commonwealth Games theme and recognise that the use of pictures rather than words can still create an association with the Games that could be potentially infringing.
Sponsoring one of the national teams does not give businesses the right to engage in wider Games-themed promotion.
Businesses operating in and around Glasgow and the other event zones in Edinburgh and Dundee should note the parameters of those areas and also be aware that the enforcement agencies will also be on the look out for businesses that try to advertise within 20 metres of the periphery of the event zones. Marketing carried out at this range and that can be seen from within the regulated boundaries may be deemed to break the rules.
The regulations are a minefield so businesses should read the organisers' guidelines and exercise caution if they intend to engage in marketing activity that either seeks to associate their brand with the Commonwealth Games or that takes place within the set event zones.
Despite their event being dubbed the 'friendly games', the Commonwealth Games organisers have pledged to take an unfriendly approach to anyone breaching the rules and errant businesses could face court action leading to fines, be ordered to pay damages or have part of their profits confiscated.
Glasgow Games officials have taken their lead from the success of the 2012 London Olympics and much of the legislation is similar to what was in place there.
David Woods is an expert in intellectual property law at Pinsent Masons, the law firm behind Out-Law.com