Questions of Sport Edinburgh Law School 07 Nov, 2008

Sporting Brands & Reputations

13.30        Introduction Abbe Brown SCRIPT, University of Edinburgh

13:35        The Olympics & the Brand Farisha Constable, Brand Protection Manager, London Organising Committee of the Olympic Games & Paralympic Games,

Sponsor protection / ambush marketing  - Linford Christie contact lenses / Unofficial merchandise – bicycle – as rings / pin trading  - counterfeit pins / business names / integrity of brand / IOC/IPC / Olympic condom – ‘for the man that doesn’t mind ‘cuming’ second’ – class action from IOC / how protect: educate, existing laws (passing off, copyright, trade marks), contractual clauses, working with other agencies, special statutory protection / when athletes in Olympics, their image cannot be used by any commercial / marketing rights / working with advertising agencies / joint trading standards unit for the 2012 Games – newham home authority, 5 boroughs, good practice, consistency, planning / London 2012 anti-counterfeiting working group – multi-agency, collaborate and share info, consider and implement education and enforcement strategies, raising awareness and leaving a legacy for brand protection / Olympic Symbols etc (Protection) Act 1995 / London Olympic Games and Paralmpic Games Act 2007 (advertising and street trading – allow framework for regulation (purpose: clean venues, allow sponsors some exposure, prevent ambush marketing)  / regulations made c2010 / Advertising and Stret Trading Regulations continue (infringement, duration, where, enforcement officers, role of trading standards and police) / Ticket Touting – 2006 Act creates crime of selling an Olympic Ticket in course of business) / London Olympics Association Right – prevent unauthorized association with London Games or Para, any ‘representation’ a word, image, sound, etcc – may suggest and association with the Games BUT a court make take particular account use of ‘listed expressions’ / uses eg from 2005 brochure / limits of the law – cannot stop: editorial use, honest statements of fact, use which is not in course of trade, pre-1995 use of the Word Olympic (eg. Little Chef Olympic Breakfast, Olympic Removals, association with London 2012 made prior to 2006. / Beijing, now all eyes on London – ME: don’t forget Vancouver / / ME: can Ed Uni set up Centre for Olympic Studies – A: we don’t try to stop educational studies, but if too commercial, then might be a problem.

13.50        Commercialisation : the individual & the image

Jamie McDonald, Golf Lawyer, IMG

Mark McCormack – started IMG 50 years ago and invented athlete as brand / IMG Golf  / How does IMG commercialize its clients? – Colin Montgomerie Sponsors – feature sponsors on websites – various products: sky, yonex, starwood, telegraph, EA sports, Gavin Green – Standard Endorsement Deal: grant of image rights (exclusive, non-exclusive, territory), grant of services/appearances, use of equipment, patches, fee, bonus, royalties, extension of endorsements (computer games), licensing / requirement that athlete must use the specified clubs by the agreemnt in place, cannot choose e.g use of 14 clubs, must use all 14 / logos on athlete – different part of body has different values / exceptional players will move from endorsement to bring their own brand – Beckham: still predominantly attached to other brands, not just his own /  Protecting the Image: trade marks of names (Beckham, Greg Norman, Tiger Woods) / Seve Ballesteros image of him from St Andrews now his logo, also tattoed on his arm  - John McEnroe  has trademarked ‘you cannot be serious’ / often try a ‘cease and desist letter – without much foundtion, but to see if it works, and it does /

Gillian Black University of Edinburgh,

Gulf between commercial practice and reality / athlete as property has no legal foundation / images and logos – individuals, rather than brand makes it different / 2 aspects: authorized exploitation (pro-active), unauthorized exploitation (reactive) / authorized: contracts/license, registered trade mark protection / Contracts: potential problems – 1) lack of certainty – enforceability issues, 2) privity of contract doctrine – cannot impact on 3rd parties unconnected to contract, so Telegraph relationship might limit that use, but others could / Zeta Jones an Michael Douglas – decided Ok! Did have legal inerest, but unlikely to be followed – eg. Hello knew what was going on / do sportsmen/women provide ‘goods or services’? – are they trading in them – not like Coca Cola trading goods, what is the athlete trading? – is the mark beng used ‘in the course of trade’ – is the name distincxtive, territories / Unauthorized Exploitation: 3 options – 1) Privacy, 2) Passing Off 3) registered trade mark / PRIVACY: was there a confidential relationship? – eg. Tiger Woods using a medication, if drug company advertised his use of it, would be a breach and could seek an interdict to stop – if not, was there a ‘reasonable expectation of privacy’ -  nature of activity, location, others in vicinity / PASSING OFF – 3 elements: 1) good will or reputation in the client’s ‘goods or services’ 2) misrepresentation by defender leading to public confusion 3) show damaged suffered by client – that law will recognize as damage  ie. Recognized interest, eg. loss of license or commercial exploitation, or damage to reputation / REG TRADEMARK – has client registered trademark, if so, does it cover use, cannot stop person from using one name – cannot stop people using one name , unless bad faith / Hypothetical problem: highland spring run a UK wide ad campaign using paaparazzzi shot of Andy Murray outside Wimbledon drinking highland spring – use image without Murray’s consent – what can he do? A: no privacy expectation, no misrepresentation, nor endorsement,  no reg trademark in Andy Murray, but not use in course of trade anyway, at least not in relationship to mineral water, miht be a breach in license ,but also prevents to third parties – Highland Spring could not enforce. So What legal basis can his advisers white a cease and desist letter?

14.10        Commercialisation : the team & the brand Seona Burnett, Partner McGrigors & David Marshall CEO Tennis Scotland

14.30        Creative Use of Brands Gerry Farrell, Leith Agency “Taking ‘Scotland’ to the last Football World Cup”, Abbe Brown “Supporting your Team? The Arsenal Saga”

Online is major prob of all brnd owners right now Ebay’s rights owners’ programme – to remove rights violation Register with You Tube -

14.50         Refreshments

15.20        Private Persons in Sporting Life Professor Hector MacQueen SCRIPT, University of Edinburgh Doug Gillon, Athletics Correspondent The Herald

Sex generally reasonable expectation of privacy, but many cases of sports stars have been present

Reasonable expectation of privacy at wedding, even if like Douglas and Zeta Jones!

Doug Gillon Athletics Correspondent, The Herald

Around major events, media interest intensifies

15.40        Sharing in televised sporting events Helen Arnot, Head of Legal Department STV SMG plc, Roisin Higgins, Advocate, Rachael Craufurd Smith, SCRIPT, University of Edinburgh

Beijing was about how and when/ Athens 2004 – embedded video 2.4m videos/ Beijing 30m videos viewed

2004 – Nobody knew of You Tube Independent research suggests that change of behaviour in pay tv

Rachel Craufurd 13hrs uploaded to You Tube every minute

ME: Nobody mentioned Google

Creates signif loss of organizations / Class action against You Tube – direct infringement – also accounting for profits and injunction – indivduals / To what extent can You Tube hide behind safe harbours/ Copyright Act / Individuals access to content / To what extent should they be liable / If needed to check every upload, would stall the service / music right,s, this came up via Napster / because You Tube modifies and indexes the file, it is liable / service provider must not interfere / veoh was effective at removing copyrighted material, but You Tube has not been / whether You Tube can control /  You Tube ref to other sites

Rosin Higgins Cheaper options to subscribe to tv rather than Sky TV

16.00        Sporting Brands and reputations: current themes Led by Abbe Brown

16.20        "Sporting experiences" Gregor Townsend MBE (Scotland and British Lions, rugby union) Julia Bracewell OBE(Olympic fencer) and Heather Lockhart (Scotland, rugby, tennis, hockey)

Followed by open panel discussion 17.00        Close

ME: Google Owns You Tube, BBC You Tube Channel, Olympics now licensing through You Tube