By Wang Rui, Partner, King & Wood’s Olympic Group
As consideration for obtaining Olympic marketing rights, the official sponsors have contributed considerable funds and goods to the Olympic Games. The strong support of sponsors is crucial to the successful staging of every edition of the Olympic Games. As such, the International Olympic Committee (“IOC”) views the protection of the sponsors’ rights as an important aspect in the preparation and organization of the Olympic Games. The Government of the Beijing Municipality and Beijing Organizing Committee for the Games of the XXIX Olympiad (“BOCOG”) also solemnly have covenanted in the Host City Contract and the Marketing Plan that they will take all necessary measures to prevent and combat ambush marketing in any form…
In the relevant official documents issued by BOCOG, ambush marketing is defined as “any advertising, promotion, commercial identification or other activities undertaken by a person or entity that may express or imply a fictive or unauthorized association with BOCOG, IOC, the Chinese Olympic Committee, the Chinese Olympic Team, the Olympic Games, the Paralympics or any event organized by any of the foregoing entities”. The abovementioned definition includes both the acts of infringement in which the Olympic marks are directly used without authorization for market development, and the marketing activities which do not involve direct use of the Olympic marks but indicate or suggest certain links with the Olympics that factually do not exist (the “Latter Method”).
As the Beijing 2008 Olympic Games were approaching, many enterprises which had not obtained sponsorship rights (the “Non-sponsor Enterprises”) attempted to take a free ride with the sports festival. By taking this chance, they not only expected to raise their enterprises’ profiles and increase the market share of their relevant goods or products, but also wished to mislead the public into believing that they legally obtained the sponsorship rights from the Olympic Games. Since the acts of directly using the Olympic marks for market development are apparently against the law and explicitly prohibited by Chinese laws and regulations, most of the enterprises engaging in ambush marketing activities did not commit such obvious infringements, instead, they adopted the Latter Method and made efforts to hide their intent by taking advantage of time, space and other objective elements.
Currently, certain acts of ambush marketing already appeared in the Chinese market. Slogans like “Acclaim for 2008” or “Sing for 2008” used in some Non-sponsor Enterprises’ advertisements are examples for “free riding”. In the past editions of Olympic Games, acts of ambush marketing were also not rare.
In China, laws and regulations are the first frontier to combat the acts of ambush marketing. The Regulations on Protection of Olympic Symbols, Regulations on Management of Special Marks, Trademark Law, Anti-unfair Competition Law and its judicial interpretation and other laws and regulations constitute the legal basis of the anti-ambush marketing campaign.
Administrative coordination and supervision are also an important guarantee for the success in combating ambush marketing. BOCOG has established an Olympic legislation and publicity coordination mechanism jointly with the relevant institutions, groups, athletic teams and administrative authorities managing athletes(including but not limited to the State Administration of Radio, Film and Television and the State Administration of Sport), which might be taken advantage of by the enterprises engaging in ambush marketing in order to exercise unified management over the market development activities related to the Olympic Games. BOCOG also has implemented a City Operation Plan. Under this plan, BOCOG shall, during the Olympic Games and in a period before and after the Olympic Games, take steps to bring under control all activities of advertising over the relevant stadiums and gymnasiums as well as venues in the host city and co-host cities, with assistance extended by the competent administration for industry and commerce. And, through the conclusion of agreements, it shall also manage to bring under control all activities of advertising around the stadiums and gymnasiums, billboard advertising at bus stops and airports and all street promotional columns in the host city and co-host cities to fully guarantee the exclusive right of advertising by the official Olympic sponsors in these areas. In addition, BOCOG shall monitor visual advertising aired during particular time slots in efforts to prevent and restrict the occurrence of advertisements by Non-Sponsor Enterprises during particular time slots or on particular TV channels.