Birmingham Commonwealth Games 2022: the dos and don’ts of marketing

There are opportunities too for other businesses to harness the advertising power of the Games. Caution is needed, however.

Tough regulations and guidance prohibit businesses from making any “unauthorised association” with the Games and severely limit what promotional activities businesses can engage in. On and offline marketing activity will be monitored closely and the regulations will be enforced strongly to protect the investment of the official partners. Businesses that get it wrong and “unfairly piggy-back” on the Games brand, risk fines, director liability and reputational damage.

We have taken a look at the rules and guidance and provide some dos and don’ts for your advertising in the lead up to the Games.

The Games and its partners

The Games run from 28 July to 8 August 2022 and promise to combine a celebration of sport involving athletes from 72 nations and territories with the unique culture of the host city. That prospect has prompted a number of major brands, such as E.On, Canon and RE:ACT, to invest in the Games within official partnerships.

In return for that investment, Games partners gain the exclusive rights to promote their brands in association with the Games. As was the case with the London 2012 Olympics and 2014 Commonwealth Games in Glasgow, UK legislation and organiser guidance underpin those rights.

The legal position

The Birmingham Commonwealth Games Act 2020 generally prohibits businesses from making representations likely to suggest to the public that there is an association between the Games and their business, or the goods or services they offer, unless authorised to do so by Games organisers. The regulations are similar to those we have seen before at major UK events, including the 2012 London Olympics and Glasgow Commonwealth Games 2014. 

Limited exceptions apply, including where the representations simply use or exercise intellectual property (IP) rights the business holds, or where the business has been using the representation continuously since at least 21 December 2017. Other limited ‘fair use’/journalistic-type exceptions apply too, for example where the use of a representation is in a report of a Games event or for the purpose of sharing information about the Games. Specific further exceptions also apply to online intermediaries that are mere conduits for unauthorised representations by others, or which cache or host such information unknowingly.

The Act also details a series of advertising and trading offences. Included on the banned list is unauthorised advertising or trading in the vicinity of “Games locations” during specified periods during which events are being held. Specific regulations have been drawn up that give more detail on what is prohibited and where and when the prohibitions apply.

Locations where the ban extends include, perhaps most obviously, in areas next to stadiums where Games events are being hosted, like the Alexander Stadium, University of Birmingham facilities, Edgbaston cricket ground, the Lee Valley Velopark and Cannock Chase. It also captures physical advertising or trading on pavements that run alongside events being staged on public roads, such as the marathon events and time-trial cycling, including in Birmingham city centre, Warwick and Wolverhampton. Advertising in the airspace above Games locations will also generally be an offence, unless authorised.

The regulations also reflect the increasingly innovative digital world of advertising. For instance, it will be an offence to display advertising on mobile devices used by members of the public when they are within the vicinity of Games locations during the affected periods when the restrictions apply if the “advertising is done wholly for the purpose of, or with the principal intention of, promoting a product, service or business specifically to” those people.

A series of exceptions apply to the advertising and trading offences listed in the regulations, including exceptions that again limit online intermediaries’ liability, for charities, and for newspapers and other periodicals.

In accordance with their obligations under the Act, Games organisers published guidance on rights of association with the Games. The organisers also published a no marketing rights protocol for organisers involved in delivering the Games in their capacity as suppliers or sub-suppliers, consultants, contractors or sub-contractors.

Ambush marketing

The law and guidance effectively seek to address the risk of ‘ambush marketing’ – this is a term used to describe marketing strategies by companies that seek to exploit another organisation’s event or marketing for the promotion of its own brand.

There have been many prominent examples of ambush marketing at major sporting events.

At the 1996 Olympic Games in Atlanta, for example, UK sprinter Linford Christie wore contact lenses branded with the Puma logo to a press conference, attracting attention for Puma despite rivals Reebok being official partners of the Games.

At the 2010 FIFA World Cup, a group of women dressed in orange attended a football match involving the Netherlands as part of a publicity stunt coordinated by the Bavaria drinks brand. Rival brewer Budweiser was an official tournament sponsor.

What promotional activity is permitted – and what is not?

The ‘rights of association’ guidance produced by the Games organisers is a helpful starting point for businesses unsure whether their planned marketing activities around the Games will comply with the law.

The guidance, for examples, lists IP rights the organisers own for Games-related words and logos. The rights to use the words “Birmingham 2022” rest with the organisers and its partners, for example. Unauthorised use of those words and logos, without a defence, risks liability for IP infringement.

However, the prohibition on unauthorised associations with the Games extends beyond the scope of the organisers’ IP rights. This is also recognised in the guidance produced by the organisers, who have set out a list of terms that it said “might be subject to an enforcement action” if they are used by non-official partners of the Games. The list includes words such as “Medals”, “Gold”, and “Sponsors”.

The guidance gives examples of phrases, such as “Supporters of the 2022 Games”; “Going for Gold in 2022” and; “Birmingham Games”, that the organisers say are word combinations that “would be likely to be regarded as attempting to create an association with the Games” in breach of the Act.

The organisers have, however, also given examples of what it is likely to consider legitimate associations with the Games that are unlikely to attract enforcement action. Examples include hotels or restaurants mentioning that they are within “easy walking distance” of Games locations, and electronics retailers advertising TVs “perfect for watching athletics”.

The law on unauthorised associations with the Games do not cease to have effect until 1 January 2023. Organisers are keen to urge advertisers to contact them to obtain authorisations for their planned marketing activity. They have said they will act “reasonably and with pragmatism” when enforcing the Act, but businesses risk being fined and subject to court orders if their marketing campaigns are deemed to imply too close an association with the Games.

What happens if you get it wrong?

As well as fines and reputational damage that can arise from findings of infringement or non-compliance, courts could order businesses to forfeit or destroy goods and/or pay damages. The organisers can pursue other punitive remedies too. From experience of other major UK events, organisers will have sophisticated processes for monitoring on and offline marketing and will always look to take action to stop anyone who is not complying with the rules to the letter.

There is scope to promote a brand successfully within the confines of the legislation in force, but marketing professionals should get legal advice on whether their proposed marketing falls the right side of the rules before finalising their strategies and content for the Games.

Co-written by Katy Bourne of Pinsent Masons.