Defences to infringement
The Olympic Symbol etc. (Protection) Act 1995 (OSPA) outlines a number of defences to infringement of the Olympic and Paralympic Association Rights. These are contained in Section 4 of OSPA and are outlined below.
1) Use in a context which is not likely to suggest an association between a person, product or service and the Olympic/Paralympic Games or the Olympic/Paralympic movement
OSPA defines the concept of association to include any kind of “contractual” or “commercial” relationship with the Games or the provision of “financial or other support for or in connection with“ the Games. It also clarifies that statements made honestly and in a relevant context will not create an association (see point 2 below)
E.g. An antique store advertising for sale an “original marble Olympian statue circa 500BC”.
2) Making a statement honestly, provided it is not used for promotional purposes in an irrelevant context
An “honestly made statement” must be in accordance with “honest practices in industrial or commercial matters” and must not make “promotional or other commercial use of a protected word by incorporating it in a context to which the Olympic/Paralympic Games ... [or movement] are substantially irrelevant”.
Key factors for consideration, according to LOCOG, are:
- Whether the statement is true;
- Whether, despite being true and accurate, the statement may cause confusion/a misunderstanding or be misleading as to the relationship with the Games. This includes references that are gratuitous, disproportionate or unduly emphasised;
- Whether the person making the statement is acting fairly in relation to the interests of the Authorities;
- Whether the Games are relevant to the context in which the statement is used.
E.g. A factual reference on a website which states, amongst other useful information, “The Bed & Breakfast is located in Greenwich, just a 5 minute walk to Observatory and next to the Olympic equestrian venues”.
3) Editorial or journalistic use or incidental use in literacy or artistic works etc.
OSPA allows the use of controlled representations when publishing or broadcasting a report or information about the Games. However, this does not include advertising material which is produced in connection with, or at the same time as, editorial information (such as ‘advertorials’). OSPA also allows controlled representations within literary works, dramatic works, sound recordings, films or broadcast.
E.g. a film about an athlete can make incidental references to the Games without infringing OSPA.
Other OSPA defences include:
4) The free movement of goods within the European Union, where those goods have entered the EU market with the consent of the Proprietor
5) Use which has been made continuously since prior to the introduction of OSPA in 1995, including use in business names
6) Use of design rights and other rights existing prior to the introduction of OSPA in 1995, and use of any registered design or trademark.
7) Use for judicial or parliamentary proceedings etc.
(See the Olympic Symbol etc. (Protection) Act 1995 for more information)
In relation to the London Olympic Association Right (LOAR), which was introduced by the 2006 Act and prevents unauthorised association specifically to the London 2012 Games, further defences include:
1) Use of someone’s own name or address , provided this is in accordance with honest commercial practices
E.g. A business with offices at “2012 Gold Street” can refer to their address in adverts
2) Use which indicates the quality, quantity, value, geographical origin, time of production or purpose of goods and services etc. provided that this is in accordance with honest commercial practices
E.g. A bottle of wine, produced by Gold’s Winery in 2012 can advertise in ads, “Gold’s 2012 Claret = 6 bottles for £30” without infringing LOAR
We strongly advise any business wanting to make reference to the London 2012 brand or associated Games’ Marks to first familiarise themselves with the 2006 Act, OSPA and other supporting guidance provided by LOCOG on the London 2012 website. Businesses should also seek independent legal advice if unsure of any of the information on this website or contained in London 2012’s Statutory Marketing Rights and associated defences.
