Sunday, 12 January 2020

Birmingham Commonwealth Games Association Right

Birmingham Commonwealth Games Flag
Author Eliot Bowen Licence CC BY-SA 2.0 Source Wikipedia 2022  Commonwealth Games

Jane Lambert

One of the bills currently before Parliament is the Birmingham Commonwealth Games Bill. It was introduced into the House of Lords by Baroness Barran, Parliamentary-Under Secretary of State for Civil Society and Loneliness and received its first reading on 7 Jan 2020.  Part 2 of the Bill would create a new intellectual property right which I shall refer to as "Birmingham Commonwealth Games association right".

The new right is defined by clause 3 (4) of the Bill as "an exclusive right of the Organising Committee to use any representation (of any kind) in the manner described [in clause 3 (1)]".  Clause 3 (1) prohibits any the use of any representation (of any kind) in a manner likely to suggest to the public that there is an association between the Birmingham Commonwealth Games and goods or services, or a person providing goods or services.   In that regard, it is similar to the exclusive rights created by the London Olympic Games and Paralympic Games Act 2006London Olympic Games and Paralympic Games (Amendment) Act 2011, and the Sunday Trading (London Olympic Games and Paralympic Games) Act 2012 for the Olympic and Paralympic Games of 2012. I discussed those rights in Olympics Association Right and London Olympic Association Right in NIPC Law on 31 July 2012.

There are, of course, some obvious differences between Birmingham Commonwealth Games association right and the Olympics and London Olympics association rights.  The Olympic Games is open to participation by athletes from across the world whereas participation in the Commonwealth Games is restricted to citizens or residents of Commonwealth countries.  These are current and former possessions of the United Kingdom with a number of important exceptions such as the USA and the Republic of Ireland plus the former Belgian territory of Rwanda and the former Portuguese territory of Mozambique.  Consequently, the commercial importance (and hence the incentive for ambush marketing) of the Commonwealth Games is significantly less than in the Olympics.  Secondly, the Olympic symbol is protected by the Nairobi Treaty whereas there is no similar international agreement for the protection of the Commonwealth Games symbol.  Thirdly, the International Olympic Committee has sufficient authority to compel host cities and national Olympic committees to accept terms like those contained in the draft agreement for the 2012 XXX Olympiad.

The Commonwealth Games Federation does have some intellectual property.   Paragraph 4 of Byelaw 18 to the Commonwealth Games Federation Constitution provides:
"The 'Commonwealth Games Intellectual Property' consists of the intellectual property rights in the term "COMMONWEALTH GAMES", the initials 'CGF', the Official Emblem ("The Bar"), the Official Flag, the Official Symbol or Symbols, event specific names, symbols and logos, intellectual property relating to the organisation, exploitation, broadcasting and/or reproduction of the Commonwealth Games by any means whatsoever and any other materials, products or works that a reasonable person would assume are related to or connected with the Commonwealth Games."
These rights are protected by trade mark registration and by the laws of passing off in the individual member states.

Returning to the Bill, clause 3 (2) sets out "examples  of an association between the Games and a person providing goods or services—
(a) a contractual relationship;
(b) a commercial relationship;
(c) a corporate or structural connection;
(d) the provision of financial or other assistance."

The "use" that is restricted to the Organising Committee by virtue of clause 3 (3) includes:
"(a) applying a representation to goods or documents;
(b) selling, offering, or exposing for sale goods that bear a representation;
(c) importing or exporting goods that bear a representation;
(d) providing or offering services by reference to a representation;
(e) promoting goods or services by reference to a representation."
Any infringement of those rights is actionable in the civil courts at the suit of the Organising Committee by virtue of clause 3 (4).  Tn England and Wales infringement proceedings could be brought in the Chancery Division including the Intellectual Property Enterprise Court and any County Court hearing centre with a Chancery District Registry (see CPR 63.13 and paragraph 16.1 (6) of Part 63 Practice Direction). Clause 4 of the Bill provides for the "authorization" or licensing of association rights.  Clause 5 and Sched 1 provides for exceptions.   Clause 8 requires the Organising Committee to publish guidance about the operation of Part 2 of the Bill.

As I practised primarily from Manchester at the time of the last Commonwealth Games in England in 2002 I have some experience of the intellectual property issues that can arise from these games. Since my chambers now have an annexe at 2 Snow Hill, I shall be pleased to chair and speak at a seminar on Birmingham Commonwealth Games association rights and other IP issues relating to the Games for local businesses and their professional advisors hould there be sufficient interest in the topic.  In that regard, I should be interested to hear from such businesses by phone, email, Linkedin, Facebook or Twitter.

Anyone wishing to discuss this article or any of the matters mentioned may call me on 020 7404 5252 or send me a message through my contact page.

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