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Socialympics

Introduction

As set out in the London 2012 and the protection of exclusive rights note, the laws implemented for the London Olympic Games are the most stringent ever introduced by a host country and involve some concepts never previously covered by Olympic legislation. July and August this year will see the 30th modern Olympic Games in London but interestingly it will be the first time social media will truly be used to embrace the event.  Brands owners and/or marketing agencies (“Brands”) should ensure that they do not create an association with the Olympics. Under the legislation an association is defined as suggesting any kind of contractual or commercial relationship, and kind of corporate connection or provision of financial or other support (such as sponsorship or free services).
 
Four years ago in Beijing there was no official integration with social media platforms, a simply amazing thought in today’s technologically focussed world. In 2008 the respective user figures for Facebook and Twitter was 100m and 6m. Since then those figures have skyrocketed to 845m and 140m respectively.  One effect of the increased social media awareness is the implementation, and effect, of new legislation that surrounds and protects the London Olympics.  With this in mind this article will briefly look at some common questions that are facing Brands that do not have an official sponsorship of the games.
 
Use not in the course of trade
 
The rights we are looking at here require use by the Brand, in the course of trade, in relation to goods or services, without consent for an infringement to occur. For details on non-commercial use please see http://www.london2012.com/documents/brand-guidelines/guidelines-for-non-commercial-use.pdf.
 
Where the Brand is accused of breaching the Olympic Association Right/Paralympic Association Right in the course of the trade the burden of proof is reversed.  In effect the Brand is deemed guilty of an infringement unless they are able to prove that they are innocent (the opposite is true for any London Olympic Association Right infringement). 

Are there any particular images and words we should avoid?
 
There are a number of names, phrases, trade marks, logos and designs that are protected by legislation and will be used by a Court when determining whether a Brand is infringing (either the new legislation and/or the Olympic Symbol etc (Protection) Act 1995) (“Games’ Marks”). In the case of the use of words such as ‘London 2012’ it is the context they are used in which will determine if there is an association.  It is also possible to create an association even where none of the words below are used but an association is still created e.g. an athlete running with a lit torch.
 
Brands and marketing agencies should avoid using these marks and where using the individual words (at the bottom of the list) these should not be used in combinations (e.g. London Summer Games) as to do so may infer an association with the Olympics.
 
A non-exhaustive list of the Games’ Marks include:
  • The Olympic Symbol
  • The Paralympic Symbol
  • The London 2012 Olympic and Paralympic Emblems
  • The London 2012 mascots
  • The words 'Olympic', 'Olympiad', 'Olympian' (& their plurals & words very similar to them – eg 'Olympix'
  • The words 'Paralympic', 'Paralympiad', 'Paralympian' (as above eg 'Paralympix')
  • The Olympic Motto: 'Citius Altius Fortius' / 'Faster Higher Stronger'
  • The Paralympic Motto: 'Spirit in Motion'
  • The Team GB logo
  • The ParalympicsGB logo
  • The British Olympic Association logo
  • The British Paralympic Association logo
  • london2012.com (and various derivatives)
  • The London 2012 sports pictograms
  • Games
  • Two thousand and twelve, 2012 or Twenty twelve
  • Gold, Silver or Bronze
  • London
  • Medals
  • Sponsor; and
  • Summer
 
What can and what can’t Brands do?

Can they advertise outside the venues?

Ambush marketing is seen as one of the most significant problems faced by the Olympics Games and the new legislation is designed to prevent Brands gaining an unfair advantage at the expense of official sponsors.  The restrictions concerning the London Olympic Games extend to ‘Event Zones’ around the games venues. Under these restrictions unofficial Brands are prohibited from advertising or trading within these zones during the relevant time periods. More details of the restrictions can be found at
http://www.london2012.com/business/advertising-and-trading-regulations/

The new legislation was enacted in part due to previous ‘creative’ methods of Brands in the past to circumvent previous rules, therefore the focus (of the new legislation) is on the overall impact of an activity opposed to being on set instances.  As a result it is the spirit as well as the letter of the legislation that Brands need to focus upon.
 
Non-promotional activities
 
Brands can undertake activities as long as they are not ‘promotional’ or create any association with the Olympics. Examples of activities that are unlikely to infringe include:
  • office parties;
  • televising the Olympic Games in the office; and
  • providing information about the Olympics to clients (e.g. timetable of events).
Brands should be aware that they are not allowed to ‘sponsor’ a news broadcast or conferences.  In addition deliberate use of “marketing collateral” (such as corporate newsletters) to create an association is also not allowed under the legislation. 
 
Use of tickets as part of a promotion
 
The Brands should not use Olympics tickets as part of a competition or promotions as there are strict prohibitions against this in the legislation.
 
Conferences
 
Conferences can be held but Brands must be very careful that they do not use the conference (or sponsorship) of a conferences as a ‘back-door’ means of creating an association with the Olympics. Further information about holding a conference can be found at http://www.london2012.com/brandprotection (Related Content).
 
Links to official sites
 
Links to the official Olympic sites (e.g. www.London2012.com) are allowed but the Brand should ensure that these are in plain text as the use of the Games’ Marks is not allowed.
 
Adverts including Olympic athletes
 
Brands are allowed to use adverts that contain Olympic athletes as long as the images or footage was not taken a previous game nor that they suggest any association or endorsement with the Olympic Games. It is permitted to refer to the athlete as an Olympian or Paralympian as long as it is within proportion to the advert as a whole.

Social media monitoring
 
LOCOG have made it apparent that infringements on Twitter will be monitored and where necessary action will be taken via Twitter to lock or close down accounts that are infringing the Olympic rights. A recent example (http://www.guardian.co.uk/sport/2012/may/23/twitter-london-2012-olympic-logo) has shown that even where the number of followers was small (2,700) efforts will be taken to crack down on infringements. Activities such as using or purchasing certain hashtags (e.g. #London2012) will be forbidden.

Social media content
 
Social media content is covered by the legislation and therefore it is advisable that Brand’s social media content is relevant, accurate and factual. Brands should update their internal moderation guidelines to cater for the new rules and everyone who has access and authority to post material should be trained. The starting point for a Brand when re-tweeting user generated content is to consider the consequences as if the content was initiated by the Brand themselves.  Where the Brand is engaging with its friends, followers, customers etc all user pictures, video and audio content should be moderated and removed if allowing it to remain may create an impression of an association.
 
Therefore Brands should not encourage Olympic themed content from users or pass on specific expressions of support or excitement that refer to the games or individuals within the games. In short wherever there is a risk of an association (or use of the Games’ Marks) with the Olympics Brands must be very careful prior to using such content.  Where a Brand has any uncertainty over content both generated on their behalf and by users the content should be deleted to avoid any potential further infringement/damage being caused.

Unsure about an advert’s content
 
Where a Brand is uncertain as to whether the content of any advertisement or promotional material is appropriate it is not possible to submit them to LOCOG (organising body of the London Olympics) for approval.  It is therefore important to either seek legal advice, contact an industry body or to air on the side of caution. At all times the Brand should consider whether a ‘reasonable’ objective individual would connect the materials with the Olympics and if they would (or even might) the material should not be disseminated.


Defence/Exemption
 
A number of Brands have sought to understand what defences and exemptions there are to what would otherwise be infringing acts.  There are two main defences/exemptions that may be applicable the first is that the statement “accords with honest practices”.  This is because no association with the Olympic Games will be created.  LOCOG has clarified that key factors in determining whether an association will include questions such as:
  1. is the statement true and accurate?;
  2. is there any suggestion or implication of a connection with the Olympics?;
  3. is there any unfairness to the interests of the Olympic authorities and sponsors?; and
  4. is the context of use relevant?
A second exemption is where the use of the terms is part of publishing or broadcasting of a report or information about the Olympics. Where there is a genuine journalist report the use will be exempt.  Due to the nature of the Brands we have advised it is not expected that this exemption will be widely used.

 
Conclusion
 
The legislation (new and old) offers the widest range of protections around an Olympic Games ever.  Due to the uncertainty around certain areas, in particular social media, Brands may find the coming months a potential mine-field.  It is likely that the first ‘Social Olympics’ will see a significant number of new and inventive ways for Brands to test the boundaries of the legislation as they seek to engage with their customers.
 
It is uncertain the extent to which LOCOG will (and will be able to) enforce these powers where a Brand is ‘innocently infringing’ with many commentators believing that the powers are predominately there to prevent severe examples of activities that would constitute intentional infringement under the new legislation e.g. Nike during the Atlanta Olympics in 1996.  Professor Simon Chadwick has said that LOCOG will be using specialist intelligence/policing squads in conjunction with agreements with social media sites such as Twitter to police the new legislation.  Whether this will be sufficient or even excessive awaits to be seen.
 
The effective result of the introduction of the legislation is a situation where many Brands are still having difficulty in establishing exact guidelines as what they are permitted to do without infringing. Additional helpful guidance can be found at EModeration, The Guardian and the Committee of Advertising Practice.