Out-Law News 3 min. read
17 May 2013, 5:38 pm
The Scottish Government has set out proposed regulations that it said are aimed at enabling most businesses to operate as normal during the Games whilst protecting sponsors' rights and the associated value of funding that they provide. The draft Glasgow Commonwealth Games
(Trading and Advertising) (Scotland) Regulations (67-page / 12MB PDF) are open to consultation until 7 August.
"Games sponsors provide a vital source of funding for the Commonwealth Games, without which Scotland would not be able to host the Games," the Scottish Government said in its consultation document. "In return for this funding sponsors have exclusive rights to associate their brands with the Games."
"Unauthorised advertising in the vicinity of Games venues is a form of marketing commonly employed by non-sponsor entities through which they attempt to create an association with the Games, gaining the benefit of the association rights sponsors have paid for, but also at the same time diminishing the integrity of the Games. This is commonly known as ambush marketing. Such activity undermines the value of Games sponsorship," it said.
The draft regulations place restrictions on unauthorised advertising within specified 'event zones', such as the Hampden Park Precinct where athletics events are to be held, and during set times. In the Hampden example, unauthorised advertising within the mapped Precinct is prohibited during the period covering 23 July to 3 August 2014 inclusive. Glasgow 2014 Limited is the official organising committee for the Games and is responsible for authorising advertising. Ambush marketing campaigns are to be prohibited under the new rules.
An 'ambush marketing campaign' is defined as an act or series of acts "intended specifically to advertise within an event zone during a prohibited time" a good or service, or a business that provides goods or services. The prohibition on ambush marketing would apply to "all types of advertising", including those on billboards, posters and flyers, as well as more unconventional methods such as "light shows", aerial advertising and adverts displayed on their body or via costumes where individuals involved are "knowingly taking part in an ambush marketing campaign".
The prohibition would also apply regardless of whether the ambush marketing activity was taking place on public or private land within the 'event zones', according to the draft regulations.
Certain advertising activity will be allowed to take place under the scope of set exemptions to the ban on ambush marketing. The exemptions would allow, for example, advertising to be sent to mobile phones or other "personal interactive communication device[s]" as long as the advertiser does not intend for their advert "to be displayed, by means of the device, to the public at large (rather than only to the individual using the device)".
The exemptions also cater for "activity intended to publicise a belief, cause or campaign or to mark or commemorate an event" as long as this does not involve the promotion or advertisement of a "product or service and is not carried out for a commercial purpose or for gain".
Adverts displayed on shop premises within the 'event zones' that conform to rules size and placement would also be permitted, whilst buses and taxis would be allowed to display adverts when operating with 'event zones' during the event times.
Local trading standards officers are likely to be involved in enforcing the new rules. Enforcement officers would have the power to seize, remove or destroy infringing items, and infringers could be prosecuted and fined.
"Glasgow 2014 understandably state that they wish to maintain a celebratory atmosphere," intellectual property law expert James Monteforte of Pinsent Masons, the law firm behind Out-Law.com, said. "This will require a careful balance to be struck between protecting sponsors' interests and avoiding coming across as overly aggressive."
"Preventing unauthorised street traders from setting up stall in event zones may prove uncontroversial. In contrast, maintaining a celebratory atmosphere whilst stopping unauthorised busking or street performances, and ensuring businesses who are based in the event zones maintain only 'business as usual' activity, is likely to require a more sensitive approach to enforcement," he said.
"Glasgow 2014's job will be made easier by the promotion of the proposed Regulations and their impact well in advance of the Games, starting with this consultation process," Monteforte added.
