Merchandising the Olympic Spirit

[richard]

The International Olympic Committee's ("IOC") decision to award the 2012 Olympic games to London has fired the starter's gun for the extensive regeneration of the Lea Valley area of the Capital. As that regeneration gets under way, so too will merchandising activities begin in earnest.

There will of course be official merchandise that has been licensed by the organising committee of the 2012 games ("LOCOG") or the British Olympic Association ("BOA"), but it is likely that selling unlicensed merchandise will be too good an opportunity to miss for some companies and would-be entrepreneurs.

However, the IOC, possibly still chastened by the experience of the Atlanta games in 1996, is very protective of the image of the Olympics and so insisted that candidate cities in the bidding process for the 2012 games take steps to prevent or limit the commercialisation of the Olympics beyond official sponsors and partners. The result of this is that the LOCOG and the BOA are likely to use all the weapons at their disposal to prevent the sale of unofficial Olympics merchandise.

LOCOG and the BOA already have one key weapon in their armoury for the fight against unofficial merchandise in the Olympic Symbol (Protection) Act 1995 ("OSPA"). The OSPA creates a quasi-trade mark right called the Olympic association right which is infringed if, subject to certain exceptions, a person uses in the course of trade the Olympic symbol, the Olympic motto or any of the words "Olympiad", "Olympiads", "Olympian", "Olympians", "Olympic" or "Olympics" (or anything similar) without the consent of the proprietor of the Olympic association right. Secondary legislation currently in force provides that BOA is the proprietor of this right. The breadth of the phrase "use in the course of trade" makes the Olympic association right a powerful weapon against unofficial merchandise.

The London Olympics Bill (the "Bill") that is currently making its way through Parliament will add further powers, paving the way for the newly appointed Olympic Minister, Tessa Jowell, to create regulations that restrict the ability to advertise and trade in the vicinity of the Olympic venues. Of particular relevance in the Bill is the creation of a new right known as the "London Olympic Association Right". This new right is infringed if, in the course of trade, a person "uses in relation to goods or services any visual or verbal representation (of any kind) in a manner likely to create in the public mind an association between the London Olympics and the goods or services or the person who provides the goods or services." The right is potentially very wide in scope and it is likely (although this is not clear from the Bill) that the IOC will require LOCOG to assume an enforcement role and control all "Olympic intellectual property" in the lead up to and during the Games.

It is expected that the regulations relating to advertising and street trading will be enacted much closer to 2012 in order to take into account any changes in IOC policy or changes to the venues for the Olympic events. However, the Bill grants the Secretary of State broad discretion as to the detail to be included in such regulations. Any contravention of the advertising regulations will be a criminal offence punishable by a fine of up to £20,000.

Adam Mitton is a solicitor specialising in intellectual property within the Fashion Group at Harbottle & Lewis LLP


Source
Adam Mitton
theretailbulletin.com