Jumping through hoops: using the Olympics to sell

As the London Olympics draw ever closer, brands are looking for ways to use the Olympics to sell, without actually using the Olympics to sell. So, with Draconian LOCOG restrictions in place, how can brands who are not sponsors capitalise on this year’s Games without veering into ambush marketing territory? The Drum’s Cameron Clarke investigates the legal implications of ambush marketing, and takes a look at some of the ways big names, including Nike, are getting around the official restrictions to create relevant, engaging campaigns.

It is costing Adidas in the region of £100m to sponsor the London 2012 Olympics. And yet for all that money, one recent survey claimed that it is in fact bitter rival and non-sponsor Nike that is the brand most associated with this summer’s Games.Nike appears to be enjoying the fruits of its ‘Make it Count’ advertising campaign, which contains no explicit reference to the Olympics but features top British competitors Paula Radcliffe, Mo Farah and Mark Cavendish. Unfortunately for Nike, it will only be able to run the campaign until 18 July, because that’s when Rule 40 comes into play.Rule 40 is among the legislation put in place by the London Organising Committee of the Olympic Games (LOCOG) to protect lucrative commercial partners from being overshadowed by non-sponsors and, more specifically, ambush marketers. It decrees that no competing Olympian can appear in a non-sponsor’s advertising campaign shortly before or during the Games.If Rule 40 is fairly clear, some of the other legislation is considerably more opaque. In broad terms, the London Olympic Games and Paralympic Games Act of 2006 prevents non-sponsors from ‘suggesting an association’ with the 2012 Games and taking ‘unfair advantage’ – a “woolly concept” according to copyright lawyer Adam Rendle of Taylor-Wessing. On top of this legislation, there is the broader Olympic Symbol Protection Act (1995) which outlaws commercial use of the Olympic rings, mottos and phrases such as Olympic, Olympian and Olympiad.To prevent marketers from falling foul of the law, LOCOG has kindly provided a further glossary of ‘listed expressions’ which should be avoided in nonsponsors’ marketing activity (including social media). Hit upon a combination of terms such as ‘Two Thousand and Twelve’, ‘Medals’, ‘Gold’, ‘Summer’ and even ‘London’ in your campaign, and LOCOG could well haul you before the courts. If Gold’s Winery produce a bottle of wine and call it ‘Gold’s 2012 Claret’, that would be fine. But if an energy drink runs a campaign saying ‘drinking X Brand will help you stay awake during the 2012 Games’, it will soon find itself in trouble.While some observers deem these measures Draconian, Olympics organisers would argue they need to flex their muscles to prevent history from repeating itself. At the Sydney Olympics in 2000, Qantas ambushed official sponsor Ansett Airlines by running full page press ads featuring Aussie hero and star of the show Cathy Freeman alongside a strapline that flew dangerously close to the official Games slogan. At the 2010 World Cup in South Africa, official sponsor Budweiser was outshone by Dutch beer Bavaria which simply had the gumption to send 36 photogenic women to Holland’s game against Denmark clad in the brand’s staple orange mini-dresses. For its opportunism, Bavaria was rewarded with the kind of global PR coverage money can’t buy.As LOCOG explains in its own words: “Ambush marketers have, in the past, used their association with athletes and National Governing Bodies to suggest or imply that they have an association with the Olympic Games. This undermines the exclusivity that Organising Committees and/or National Olympic Committees can offer official Games and Team sponsors, without whose investment the Games could not happen.” Break LOCOG’s rules and the punishments could be severe. Rendle says brands that infringe the rules could face civil sanctions including “quite substantial” damages payouts. More ominously, he adds that the South Africa example would touch on criminal sanctions at London 2012: “No matter how great that publicity, you are at risk of committing a criminal offence which carries an unlimited fine, potentially.” Rendle also warns that being seen as an ambusher could put a brand out of contention to be an official tournament sponsor in future.If LOCOG feels a campaign is breaking its rules, it can apply to the courts for an interim injunction to get it taken down for the duration of the Games. Rendle says these interim injunctions should be of the most pressing concern to marketers, because they could see their carefully crafted campaign torn down at almost a moment’s notice. “In terms of getting advertising out there, and keeping it out there, that will be the biggest concern.”David Thorp, director of research at the Chartered Institute of Marketing, describes the legislation as “swingeing” and believes it goes further than it needs to.“When you see the scope of the legislation it’s quite saddening,” he says. “I’ve never seen legislation like it, and I hope I never see legislation like it again. It’s an opportunity missed. We have no problem with the Olympic movement protecting its brand and major sponsors who spend an awful lot of money for the rights. We do have a problem when thousands of small businesses are prevented from engaging, on a small scale, low-key level, in activities which we would say are offering no threat whatsoever to the major sponsors of the Games.“This is an event that is costing the UK taxpayer dear. Sponsors are bringing in something like £1bn; we’re paying £9.298bn to put the Olympics on, which is a lot more than we were paying in the first place. And you think, hang on, what are we getting back from it? What’s the business sector getting back from it?” So if the rules are this strict, how can marketers get around them and still make the most of the once in a lifetime opportunity of having the Olympics in London?Thorp says that marketers should look to own the ‘thematic space’ around the Games. “There is nothing to stop you using an image of a guy in a rowing boat,” he says. “If you look at Nike, what they’ve cleverly done is consistently marketed their products in the [athletics] space and sponsored a wide range of sporting activities – so much so that now they are automatically associated with an event that they are not even sponsoring.”Andrew Douglass, chief executive of brand experience agency innovision, believes there are a “number of ways” brands can take advantage of the Olympics without falling foul of the law. He says one such avenue would be signing a commercial agreement with a National Olympic Committee: “Since 1992 in Barcelona, Heineken and the Dutch NOC have created Holland Heineken House at every Summer and Winter Olympics. During the Olympics, this becomes the official national house for the Netherlands, with the Dutch NOC being the host and Heineken organising the venue – and of course, the beer... It has become one of the most popular destinations throughout the Olympics, combining warm Dutch hospitality with a vibrant scene of entertainment and drinking – with Heineken at the epicentre.”All is not lost for above the line advertising either. Although Rule 40 prevents participating competitors, coaches, trainers and officials from appearing in advertising, it does not apply to those who have previously done so. “Expect to see closer to games time a number of non-sponsors using iconic British athletes,” says Mike Parker, head of sponsorship at Carat.Until Rule 40 kicks in, Parker predicts that we will see “a free-for-all frenzy of activity by those brands looking to acquire Olympic equity”. He adds: “It creates an interesting opportunity for those brands with an involvement in tennis and/or Wimbledon, as this would allow a two week window in which to promote association and leverage personal endorsements.”Asked which non-sponsors are doing well so far, Parker points to Virgin’s ad campaign featuring sprinting sensation Usain Bolt mimicking Richard Branson. He says: “From both a creative and stand-out perspective Virgin’s use of Bolt would appear to have totally trumped BT. Yes, BT is a LOCOG sponsor but its above the line communications of this fact failed to stand out and virtually any ISP logo could have appeared on the end frame. Virgin was... well typical Virgin... spot-on in terms of brand, being both impactful and entertaining.”Parker is less impressed with official sponsors Powerade – “Jessica Ennis is the face of the games but one cannot help but feel that she and the other athletes have been used in a totally predictable way in the current television execution” – and Cadbury – “Last year’s Stars vs Stripes was replaced by Goo. I’m not sure why and where this all leads to.” So will these official sponsors buck up their ideas, or will they be overshadowed by the ambushers? Let the games begin. The ‘listed expressions’When considering whether an infringing association has been created, a court may take into particular account the use of any two of the words in list A below OR any word in list A with one or more words in list B below:A. ‘Games’‘Two Thousand and Twelve’‘2012’‘twenty twelveB. ‘Gold’‘Silver’‘Bronze’‘London’‘medals’‘sponsors’‘summer’