My role in the forthcoming debate is, unusually for an IP litigator, the balanced perspective, which puts me in the enjoyable position of not having to argue for one side against the other.
Ambush marketing came to light about 25 years ago largely in the context of FIFA and Olympic events. Since then the battle has raged between the official sponsors and their competitors, who may have rather enjoyed sailing as close to the wind as possible to get one over on their rivals. The well-known example is Visa and American Express.
The UK Olympic legislation, which extends the rights that LOCOG would ordinarily have under existing intellectual property laws, has been cited in the media as the most draconian legislation so far relating to an Olympic Games. Not only is it seen as draconian, but its enforcement has created an atmosphere of apprehension amongst business and individuals. Who could forget Joy Tompkins, 81, who was advised not to put her doll, with its hand knitted outfit bearing the Olympic ring design, into the church sale?
On the one hand, tax payers are told that we should bid for the Olympics and pay to host it because this will boost British business. On the other hand, sponsors handing over large sums of money for the exclusive right to promote their goods and services do not want to be undermined by those who have not paid.
This is where it gets interesting from the perspective of a trade mark lawyer. Trade marks, at least in the UK and Europe, are essentially badges of origin. The purpose of having laws relating to trade marks is to enable businesses to build brands which are recognised by their customers and to give the brand owners the right to prevent others from cashing in on those brands by using words or logos which will confuse customers into thinking that they are dealing with the original brand owner, or someone who is, for example, licensed by the brand owner. The stated rationale for granting LOCOG its extended rights is that LOCOG is a 97% privately funded company whose role is to organise and stage the London 2012 Olympic Games and as such it must protect the private sponsors from ambush marketing.
However, statistics available in the press suggest that this is not the whole picture. Recent articles claim that the total budget, including security, land acquisition, art installations etc will be at least £9.3 billion and the Daily Mail claimed in January that the budget could go as high as £24 billion.
Of the, let's say, £9.3 billion, £925 million was provided by the GLA, £2.2 billion by the Lottery and around another £4 billion by the tax payer directly. The private sector contributed just over £2 billion. That is around 21% of the overall budget. You could therefore argue that the 'owner' of the Olympics is the great British public, not LOCOG.
There is nothing unusual in exclusive intellectual property rights pertaining to tax-payer-funded ventures. The Royal Family is sponsored by the tax payer, and use of the Royal Arms, the Royal crown or any of the Royal flags, and various other indications of Royal patronage or protection are specifically prohibited, in the absence of consent, under the Trade Marks Act 1994. The rail companies also enjoy significant public subsidies and their brands are protected, licensed and enforced. But the Olympics, with its international reach, and peripatetic nature, is an unusual case.
Given the competing interests, has the government achieved the right balance between the interests of ordinary tax-paying business, from giants to corner shops, and even Joy Tompkins, and the sponsors who have invested so heavily?
I am looking forward to hearing the views of all of the contributors and the audience.