Navigating Olympic advertising: Rule 40 – a global perspective

“Rule 40” is the somewhat controversial rule of the Olympic Charter which prevents athletes who are competing in the Games from allowing their name, image or sporting performance to be used in advertising during a ‘blackout period’ (just before and during the Games) without the permission of the IOC.

In 2012 athletes began a protest claiming that the rule is too restrictive and unfairly prevents their long-term sponsors from getting any credit at this key time. The International Olympic Committee ("IOC") has since reflected on this and is taking a new position for Rio 2016. Essentially, National Olympic Committees are now permitted to take a country-by-country approach, with more flexibility to permit some advertising featuring athletes, provided that “Olympic themed” advertising remains banned.

My note below (originally published in December 2016¹) explains in detail the position being taken in the UK by the British Olympic Association. ‎Here, members of Team GB will still have to honour the rule in the majority of circumstances but deemed consents will allow some continued use by sponsors of certain longstanding below-the-line references to an athlete, for example on a sponsor's website or in catalogues. Express waivers may also be granted for some above-the-line long-running campaigns where the athlete is featured as a 'famous face', and not in a sporting context.

The guidelines issued by some NOCs is not however consistent with the UK position, and other key countries, for example Japan (hosts of the 2020 Olympics), have not yet issued any guidance. In those cases the assumption has to be that rule 40 will be enforced strictly.

Incredibly, it’s now only a few months until Rio 2016. It seems only yesterday that London was welcoming the world, getting into the Olympic spirit, and singing the national anthem on an unusually frequent basis (29 times in two weeks in fact). But Olympic fever is nearly upon us again and, this time, Brazilian style! Before you slip on your Havaianas and get into the carnival mood there are some key things that marketers looking to make the most of the Olympic buzz need to be aware of. Most importantly, how Olympic logos and terminology can (and can’t) be used, ambush marketing, and how to navigate Rule 40 of the Olympic Charter - which governs campaigns featuring Olympic athletes.

Olympic terminology and logos

Rule 40 has been the focus of much of the recent debate on sponsorship and advertising around the Olympics. However, it’s important to remember that there are also restrictions on the use of various words and logos which relate to the Games - whether or not an athlete is featured. Trade mark registrations and copyright laws afford protection to all manner of Olympic-related logos, artwork, designs, footage and images.

In the UK the Olympic Symbol etc (Protection) Act 1995 (“OSPA”) also provides special protection for various associated words, as well as the Olympic symbol and motto. The result of all these legal rights is that key properties, including the following, should generally not be used in advertising without permission:

• “RIO 2016” and the Rio 2016 emblems and mascots
• The Olympic symbol (i.e. the five rings)
• “Team GB” and the Team GB logo
• The Olympic motto: Faster, higher, stronger (or “citius, altius, fortius”)
• The words: “Olympic”, “Olympian”, “Olympiad” (and anything similar, e.g. Olympix)
• Images and footage of the Games

The Paralympic equivalents to the above are also protected in a similar fashion.

Some use of the above words in a factual manner which does not suggest an association with the Games may be permitted. For example, a travel company offering holidays in Brazil may, in a brochure about Rio, mention editorially that the city is hosting the Olympic Games in August 2016.

However, use in advertising more prominently, or as part of a promotion or competition (e.g. “win a trip to the Olympics”) will not be exempt. Alongside this, tickets to the Games should NOT be used as part of any promotion, whether or not you use any protected words or logos as this is restricted by the ticket terms and conditions. It may also be a criminal offence in Brazil.

Association and ambush

Many sporting events are the target of ‘ambush marketers’ – brands which are not official sponsors but nevertheless want to capitalise on the public interest in an event. Brands can often achieve this without using legally protected words and logos. London 2012, you may recall, looked to combat this with special legislation that protected against any unauthorised commercial association with – or ambush marketing of - the London Games.

That legislation went much further than OSPA, and prevented the creation of any association with the Games whatsoever; irrespective of the words, logos or imagery used. It meant, for example, that using images of London, combined with sporting images and Games-related themes (such as medals, podiums or international flags) in an advert was prohibited.

That law no longer applies in the UK and there is now some scope to run advertising in the UK which alludes to the Games indirectly - for example, by referring to Brazil or athletic endeavours - without necessarily infringing the law. However, brands should tread carefully if going down that route.

There certainly isn’t carte-blanche to ambush the Rio 2016 Games. The key logos, words etc are still protected, and the law of passing off may apply where false-endorsement and/or affiliation is suggested.

Similarly, if you are planning an international campaign, general anti-ambush or unfair competition laws may prevent this sort of generic association. Indeed, laws similar to the London 2012 ‘association right’ are being introduced in Brazil for the Games.

In addition, it should be noted that a law to prevent ambush marketing ‘by intrusion’ (i.e. by exposing branding or advertising within the Olympic stadia) has been proposed in Brazil.

Use of Olympic athletes – Rule 40

London 2012 created many sporting stars, and their golden credentials will doubtless be a target for marketers in the build-up to Rio 2016. New stars will also emerge, and businesses investing in them now, before the Games, could be the real winners.

However, whether you’re an athlete, an agent, or you're working with, or for, one of the many brands planning to align itself with an Olympian over the next few months, then "Rule 40" is going to impact you.

A brand will of course, in virtually every situation, need the permission of an athlete before referring to them or using their image in an advertisement or promotion. However, even if the brand sponsors an athlete or has specific permission, Rule 40 needs to be considered.

Essentially, Rule 40 prohibits athletes (and others who are accredited for the Games ) from agreeing to appear in all forms of advertising during, and for a short period before, the Games, without permission of the International Olympic Committee (IOC).

Why does Rule 40 exist?

The rule originates from the amateur origins of the Games but has been retained, partly, to protect the sponsors. Olympic sponsors get no (or very minimal) in-stadia branding and there are no sponsor logos permitted on the athletes’ kit (other than a small identifier for the team’s kit manufacturer). As such, the value of an Olympic sponsorship is mainly gained through association with the Games in advertising. As the athletes are the ‘face’ of the Games, being able to exclusively associate with Olympians during the Games period sets sponsors apart from their competitors and adds significantly to this value.

Rule 40 - Overview for Rio 2016:

• When? Applies from 27 July 2016 to 24 August 2016 (the “Games Period”)
• Who? Applies to Olympic current athletes, coaches and officials competing in Rio 2016 It does not apply to:
  • Olympians who've competed in previous Games and have no involvement in Rio 2016
  • Paralympians (but other restrictions may apply)
• What? Applies to all forms of advertising including social media and PR

Rule 40 - British Olympic Association Guidelines

Rule 40 is set out in the Olympic Charter and is ultimately enforced by the IOC. However, each National Olympic Committee (NOC) is permitted by the IOC to implement the rules in respect of their own team and territory.

The NOC for the UK, the British Olympic Association (BOA), has recently issued comprehensive guidelines about the implementation of Rule 40 in respect of advertising featuring members of the British team (Team GB) in the UK. These guidelines include provisions relating to deemed consent and express waivers (see table below). (NB. For international campaigns, the guidance of the NOCs in other countries will also need to be considered.)

Deemed consent

A Team GB member can continue to be featured in certain below the line advertising in the UK, provided that they have been used in the same way consistently for a specific period (generally since before 27 March 2016) and provided that the advert doesn’t create any association with the Games or Team GB.

Importantly, deemed consent doesn’t apply to international athletes featured in UK advertising.

Express waivers

The BOA may grant an express waiver to Rule 40 allowing a Team GB member to appear in certain above the line advertising and other advertising that doesn’t benefit from deemed consent. Generally, waivers will only be granted for:

• “Famous face” advertising which makes no reference to sport and has been used consistently since prior to 27 March 2016 (e.g. a famous tennis player promoting a watch, underwear or perfume brand)
• Non-commercial advertising
• Advertising for sports events in which the athlete is competing Team GB sponsors will also be granted express waivers in respect of their relevant sponsor category.

NB. The BOA may grant an express waiver for international athletes featuring in UK advertising, subject to the athlete also getting a waiver from their own NOC.

The deadline for requesting a waiver from the BOA is 27 January 2016 (Apply to: This email address is being protected from spambots. You need JavaScript enabled to view it.).

Deemed consent – further detail

The BOA’s guidance on deemed consent sets out some general rules. For example, deemed consent will never apply to an advert which is deemed to create an association with the Games (e.g. through use of any Olympic logos, designs, images or terminology). As such, even using “#Olympics”, “#Rio2016” or “#TeamGB” in a tweet would mean that deemed consent would not apply. In fact, the only express references to the Games which are permitted are non-prominent, factual references to an athlete’s status as an Olympian or an Olympic medallist etc, in a biographical context.

Some examples of the types of materials which will benefit from deemed consent (provided the general rules are respected), are set out below.

Full details of the BOA’s deemed consent are available in their guidelines on their website: https://www.teamgb.com/rule-40

What happens if you get it wrong?

Rule 40 applies to the athlete (or coach, official etc), not to the advertiser. As such, legal sanctions cannot be asserted against the advertiser under Rule 40. However, the IOC and/or the athlete’s NOC can penalise the athlete.

Sanctions are flexible but can be serious, including removal of accreditation for the Games and disqualification - it would be brave for an athlete’s sponsor to put an athlete’s Olympic ambitions in jeopardy!

Aside from any legal recourse against the athlete, the IOC and/or NOC will inevitably seek withdrawal of the campaign. Wasted costs and negative PR are therefore the big risks for a brand.

If you sponsor an athlete likely to compete in Rio, get to grips with Rule 40 ASAP.

• Capitalise on your relationship with the Olympian sooner rather than later – run a campaign which concludes before 27 July 2016.
• If you’ve got a long-term campaign that meets the criteria for an express waiver, apply to the BOA before 27 January 2016.
• Carefully check your existing above and below the line advertising to check what needs to be withdrawn before 27 July 2016. • During the Games Period, don’t post any messages on social media about an athlete, or repost any messages about them. (You can post a generic congratulations message after the Games Period.)
• If you really want to feature an athlete in a campaign during the Games Period, opt for an athlete who is not competing nor otherwise involved in Rio 2016 (e.g. a star from a past Games).
• In any advertising featuring an Olympian (current or past), regardless of when it is run, remember never to use any Olympic-related logos and avoid using Olympic terminology (except in respect of proportionate factual, biographical details). Similarly, don’t use images or footage of an athlete from previous Games, or images of an Olympian with their Olympic medals or in their official Olympic kit.
• *If you are an official sponsor of Team GB these tips will not apply to you, but make sure you comply with your sponsorship agreement and always seek BOA approval for your advertising.

Turning to four key markets, it's interesting to assess the differences in approach.

Key Markets

Brazil

In Brazil, the host nation for this year's Games, it seems that Rule 40 will be enforced strictly. To date the local NOC has given no indication that the Rule will be relaxed. According to Gustavo Piva de Andrade of Dannemann Siemsen, the Brazilian NOC has, to the contrary, been including an express reference to Rule 40 in the contracts that athletes are obliged to sign for participating in the Olympics. Further, the Brazilian NOC has made clear in public statements that they consider Rule 40 an important weapon to prevent the unauthorized commercial association of non-sponsoring companies with the event. Piva comments, “this is a shame, because the Brazilian NOC does not realize the negative effects that the rigid enforcement of Rule 40 might have over athletes’ sponsorship programs.” In Piva’s view, “a proper balance could be struck between the interests of the organizers and the right of publicity of the athletes. However, so far the indication is that the local NOC will rigidly enforce the Rule, thereby depriving several Brazilian athletes from maximizing their profits from exploiting their image during the Games”.

USA

The US Olympic Committee’s (“USOC”) position is more aligned to that in the UK, and perhaps slightly more relaxed. While the Rule 40 waiver, as the USOC has stated, will “enable the continuation of in-market generic advertising featuring Rio Games participants during the Games period,” the USOC’s guidelines place strict requirements in order to obtain such waivers. According to Christopher Chase of Frankfurt Kurnit Klein & Selz in New York, “marketers (and the athletes appearing in such marketers’ campaigns) will have to jump through a number of hoops when requesting the waiver to use the Olympic athlete in “generic” advertising. For example, by January 27, marketers must submit a brief overview of the campaign, key messaging from the campaign, examples of the advertising tactics to be used, the start and end dates for the campaign, and a media schedule showing that the campaign will launch by March 27 and run continuously through the Games period.”

Chase explains that “After sitting in on a call with the USOC regarding the waiver submission process, it seemed that the most critical issue, besides the “genericness” of the campaign, was that the campaign must be activated by March 27 and run through the Games period. Officials on the call made it clear that the advertising must be rolled out on a consistent schedule so that the non-USOC sponsor “does not take advantage” of the Games Period.”

Chase thinks that the relaxation of the Rule 40 ban is a step in the right direction by the USOC – specifically from the athletes’ perspective but for marketers too. However, the impact remains to be seen, given the strict guidelines that the USOC has put in place. “The concern for many marketers in the US is whether the USOC will apply its rules fairly and consistently when reviewing waiver requests, particularly given their mandate to protect official USOC sponsors. The broad definition of ‘generic advertising’ that the USOC has established states that there can be ‘no direct or indirect association with Rio Games, Olympic/Paralympic IP or terms generally associated with the Olympic/Paralympic Games.’ This goes beyond the USOC’s registered trademarks and can conceivably capture terms such as gold, silver, Rio, and Brazil – or potentially even athletic imagery, such as showing athletes swimming in a pool or walking across a balance beam in a competitive environment.”

Canada

Bill Cooper of TwentyTen‎ explains that, in general the approach to Rule 40 in Canada is similar to that in the UK, but again, possibly more relaxed. "In particular Canada allows for ‘deemed consent’ in the case of long-standing campaigns that tell a comprehensive story about the sponsoring brand and the athlete, of which the Games and the athlete’s participation therein is but one element. The core idea is to avoid scenarios whereby advertisers that have not secured Olympic marketing rights are enabled to build an unauthorized commercial association with the Olympic brand by bringing undue prominence to the Olympic theme through an athlete endorsement they may have secured. With this in mind the Canadian Olympic Committee considers the long-standing nature of the campaign in question, the broader context of the campaign storyline, the pattern of use and escalation in and around the Olympic window, and other contributing factors that might on aggregate have the impact of building an unauthorized association with the Olympic Brand."

Cooper adds, "The objective is that by taking a broader consideration before declaring a campaign on or off-side, there is an ability to strike a balance between protecting Olympic partner rights while concurrently enabling athletes to build sustainable partnerships with endorsement partners that are not solely focused on a short-term leveraging of the Olympic window.”

Australia

Finally, the position in Australia, is relatively strict, but they have acknowledged the online dimension which means advertising content is impractical for athletes to withdraw from all platforms. According to Peter Le Guay of Thomson Geer, “although the Australian Olympic Committee (AOC) supports Rule 40, it does recognise that Australian athletes may have pre-existing, long term commercial sponsors and/or institutional supporters which commence before and extend beyond the duration of the Games. Providing Australian athletes disclose such sponsorships and/or supporters to the AOC, the AOC may grant those athletes a limited waiver for ‘Historical Content’ in relation to content posted on personal digital platforms including websites, blogs and social media sites such as Facebook, Twitter, Instagram, Google, YouTube and Snapchat prior to 26 July 2016.” "In addition, the AOC will accept applications from ‘Non-Olympic Commercial Partners’ in respect of ‘Generic Advertising Activities’ (ie on-going activity which does not create any express or implied association with any Olympic property). However, the AOC retain complete discretion to grant or deny such waivers. Unlike several of the territories mentioned in this note, no deemed consents will apply.”

Conclusions

While the relaxation of Rule 40 by some NOCs will undoubtedly be welcomed by athletes, it's not yet clear whether this will be sufficient to satisfy them and their sponsors, while at the same time keeping Olympic sponsors happy that they will not be ambushed by permitted campaigns. The extent to which NOCs grant waivers will be a key factor in determining this.

The different approaches taken by NOCs also creates a real practical challenge for sponsors of athletes undertaking international campaigns. While this issue is only likely to be a challenge for the very biggest stars with an international profile, unless the sponsor opts to withdraw all advertising during the Games period, a very cautious approach will be required. Multiple NOCs will need to be consulted and there’s no guarantee that the outcome will be the same in each territory. Sponsors will therefore have to be on their toes to keep track of what they can do where.

The fact that the IOC has relaxed its stance on Rule 40 by giving NOCs flexibility to issue waivers suggests that they may not have the appetite to enforce the rule should it be breached this summer. However, given that the ultimate sanction is disqualification of an athlete from the Games, it would be very brave of an athlete and their sponsor to test the IOC by flaunting the rule.

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