In 2012 athletes began a protest claiming that the rule is too restrictive and unfairly prevents their long-term sponsors from getting any credit at this key time. The International Olympic Committee ("IOC") has since reflected on this and is taking a new position for Rio 2016. Essentially, National Olympic Committees are now permitted to take a country-by-country approach, with more flexibility to permit some advertising featuring athletes, provided that “Olympic themed” advertising remains banned.
My note below (originally published in December 20161) explains in detail the position being taken in the UK by the British Olympic Association. Here, members of Team GB will still have to honour the rule in the majority of circumstances but deemed consents will allow some continued use by sponsors of certain longstanding below-the-line references to an athlete, for example on a sponsor's website or in catalogues. Express waivers may also be granted for some above-the-line long-running campaigns where the athlete is featured as a 'famous face', and not in a sporting context.
The guidelines issued by some NOCs is not however consistent with the UK position, and other key countries, for example Japan (hosts of the 2020 Olympics), have not yet issued any guidance. In those cases the assumption has to be that rule 40 will be enforced strictly.
Incredibly, it’s now only a few months until Rio 2016. It seems only yesterday that London was welcoming the world, getting into the Olympic spirit, and singing the national anthem on an unusually frequent basis (29 times in two weeks in fact). But Olympic fever is nearly upon us again and, this time, Brazilian style! Before you slip on your Havaianas and get into the carnival mood there are some key things that marketers looking to make the most of the Olympic buzz need to be aware of. Most importantly, how Olympic logos and terminology can (and can’t) be used, ambush marketing, and how to navigate Rule 40 of the Olympic Charter - which governs campaigns featuring Olympic athletes.
OLYMPIC TERMINOLOGY AND LOGOS
Rule 40 has been the focus of much of the recent debate on sponsorship and advertising around the Olympics. However, it’s important to remember that there are also restrictions on the use of various words and logos which relate to the Games - whether or not an athlete is featured. Trade mark registrations and copyright laws afford protection to all manner of Olympic-related logos, artwork, designs, footage and images.
In the UK the Olympic Symbol etc (Protection) Act 1995 (“OSPA”) also provides special protection for various associated words, as well as the Olympic symbol and motto. The result of all these legal rights is that key properties, including the following, should generally not be used in advertising without permission:
“RIO 2016” and the Rio 2016 emblems and mascots
The Olympic symbol (i.e. the five rings)
“Team GB” and the Team GB logo
The Olympic motto: Faster, higher, stronger (or “citius, altius, fortius”)
The words: “Olympic”, “Olympian”, “Olympiad” (and anything similar, e.g. Olympix)
Images and footage of the Games
The Paralympic equivalents to the above are also protected in a similar fashion.
Some use of the above words in a factual manner which does not suggest an association with the Games may be permitted. For example, a travel company offering holidays in Brazil may, in a brochure about Rio, mention editorially that the city is hosting the Olympic Games in August 2016.
However, use in advertising more prominently, or as part of a promotion or competition (e.g. “win a trip to the Olympics”) will not be exempt. Alongside this, tickets to the Games should NOT be used as part of any promotion, whether or not you use any protected words or logos as this is restricted by the ticket terms and conditions. It may also be a criminal offence in Brazil.
ASSOCIATION AND AMBUSH
Many sporting events are the target of ‘ambush marketers’ – brands which are not official sponsors but nevertheless want to capitalise on the public interest in an event. Brands can often achieve this without using legally protected words and logos. London 2012, you may recall, looked to combat this with special legislation that protected against any unauthorised commercial association with – or ambush marketing of - the London Games.
That legislation went much further than OSPA, and prevented the creation of any association with the Games whatsoever; irrespective of the words, logos or imagery used. It meant, for example, that using images of London, combined with sporting images and Games-related themes (such as medals, podiums or international flags) in an advert was prohibited.
That law no longer applies in the UK and there is now some scope to run advertising in the UK which alludes to the Games indirectly - for example, by referring to Brazil or athletic endeavours - without necessarily infringing the law. However, brands should tread carefully if going down that route.
There certainly isn’t carte-blanche to ambush the Rio 2016 Games. The key logos, words etc are still protected, and the law of passing off may apply where false-endorsement and/or affiliation is suggested.
Similarly, if you are planning an international campaign, general anti-ambush or unfair competition laws may prevent this sort of generic association. Indeed, laws similar to the London 2012 ‘association right’ are being introduced in Brazil for the Games.
In addition, it should be noted that a law to prevent ambush marketing ‘by intrusion’ (i.e. by exposing branding or advertising within the Olympic stadia) has been proposed in Brazil.
USE OF OLYMPIC ATHLETES – RULE 40
London 2012 created many sporting stars, and their golden credentials will doubtless be a target for marketers in the build-up to Rio 2016. New stars will also emerge, and businesses investing in them now, before the Games, could be the real winners.
However, whether you’re an athlete, an agent, or you're working with, or for, one of the many brands planning to align itself with an Olympian over the next few months, then "Rule 40" is going to impact you.
A brand will of course, in virtually every situation, need the permission of an athlete before referring to them or using their image in an advertisement or promotion. However, even if the brand sponsors an athlete or has specific permission, Rule 40 needs to be considered.
Essentially, Rule 40 prohibits athletes (and others who are accredited for the Games ) from agreeing to appear in all forms of advertising during, and for a short period before, the Games, without permission of the International Olympic Committee (IOC).
WHY DOES RULE 40 EXIST?
The rule originates from the amateur origins of the Games but has been retained, partly, to protect the sponsors. Olympic sponsors get no (or very minimal) in-stadia branding and there are no sponsor logos permitted on the athletes’ kit (other than a small identifier for the team’s kit manufacturer). As such, the value of an Olympic sponsorship is mainly gained through association with the Games in advertising. As the athletes are the ‘face’ of the Games, being able to exclusively associate with Olympians during the Games period sets sponsors apart from their competitors and adds significantly to this value.
RULE 40 - OVERVIEW FOR RIO 2016:
When? Applies from 27 July 2016 to 24 August 2016 (the “Games Period”)
Who? Applies to Olympic current athletes, coaches and officials competing in Rio 2016 It does not apply to:
Olympians who've competed in previous Games and have no involvement in Rio 2016
Paralympians (but other restrictions may apply)
What? Applies to all forms of advertising including social media and PR
RULE 40 - BRITISH OLYMPIC ASSOCIATION GUIDELINES
Rule 40 is set out in the Olympic Charter and is ultimately enforced by the IOC. However, each National Olympic Committee (NOC) is permitted by the IOC to implement the rules in respect of their own team and territory.
The NOC for the UK, the British Olympic Association (BOA), has recently issued comprehensive guidelines about the implementation of Rule 40 in respect of advertising featuring members of the British team (Team GB) in the UK. These guidelines include provisions relating to deemed consent and express waivers (see table below). (NB. For international campaigns, the guidance of the NOCs in other countries will also need to be considered.)
A Team GB member can continue to be featured in certain below the line advertising in the UK, provided that they have been used in the same way consistently for a specific period (generally since before 27 March 2016) and provided that the advert doesn’t create any association with the Games or Team GB.
Importantly, deemed consent doesn’t apply to international athletes featured in UK advertising.
The BOA may grant an express waiver to Rule 40 allowing a Team GB member to appear in certain above the line advertising and other advertising that doesn’t benefit from deemed consent. Generally, waivers will only be granted for:
“Famous face” advertising which makes no reference to sport and has been used consistently since prior to 27 March 2016 (e.g. a famous tennis player promoting a watch, underwear or perfume brand)
Advertising for sports events in which the athlete is competing Team GB sponsors will also be granted express waivers in respect of their relevant sponsor category.
NB. The BOA may grant an express waiver for international athletes featuring in UK advertising, subject to the athlete also getting a waiver from their own NOC.