The Olympics and advertising law

Just two years after playing host to the 2014 FIFA World Cup final, this month Brazil’s second largest city, Rio de Janeiro, is staging the ‘greatest show on earth’: the 2016 Olympic Games. This event presents huge opportunities for advertisers and marketers, but associating products and services is not an option available to everyone.

Maracana Stadium Rio Brazil Olympics football

Ambush marketing has been defined by the International Olympic Committee (IOC) as an attempt to “unofficially create an association with the Games”. In other words, it is when brands use certain language, images or symbols to try to associate themselves with a prestigious event, without paying for the privilege. Given the importance of sponsorship revenue, it is of no surprise that the IOC has strict rules in place to protect the rights of sponsors.

The rules imposed during London 2012 were some of the most stringent in recent sporting history. However, several non-sponsors still ran campaigns which tested the limits of the restrictions. One high-profile brand, for example, ran a ‘Find Your Greatness’ campaign which showed amateur athletes in various locations around the world also called London, including in South Africa and Jamaica, and a gambling company sponsored an event in the town of London, France, claiming to be the “official sponsor of the largest athletics event in London this year”. While keeping within the rules and escaping sanctions from the IOC, both brands successfully generated huge amounts of publicity with these activities.

A key development this time around in the battle against so-called ambush marketing is a relaxing of Rule 40 of the Olympic Charter. Rule 40 creates a blackout period (27 July – 24 August 2016) where athletes, trainers, coaches and Olympic officials are not allowed to use their names or interact with unofficial sponsors for advertising purposes. Rule 40 was originally intended to ensure the event was not commercial in nature. Athletes were not allowed to take part in commercial activities which were said to conflict with the non-commercial proposition of the Games.

The IOC has taken the unprecedented step of relaxing the rule by allowing brands to apply for a waiver of Rule 40 before 27 January 2016, thus allowing their brand ambassadors to take part in campaigns during the blackout period (which was previously forbidden), provided that the campaigns do not themselves create an association with the event. The use of the official symbols and expressions associated with the Games, such as ‘Rio 2016’, ‘Rio Olympics’ as well as emblems, flags and mottos, remains the privilege of the official sponsors and partners.

The relaxation of Rule 40 means brands may not need to ‘ambush’ the Games at all. The rule change offers opportunities to brands to legitimately have a presence during the Games, provided they have received a waiver, or have deemed consent, and stick to the rules. Such brands can legitimately maximise their investment in their top-ticket talent at the most relevant time. Likewise, the change represents a reasonable shift in favour of the athlete’s rights, since while all eyes are on them at the pinnacle of their sporting careers, they will be able to maximise their brand value.

It will be interesting to see what hungry-for-publicity non-sponsors will produce during Rio 2016. We must never forget that, as always, it will be a perfect opportunity for the advertising and marketing industries to do what they do best: get creative.

Huw Morris is a senior associate and Alex Murawa is a trainee at Reed Smith.