Guidance on Birmingham Commonwealth Games Association Right

Birmingham National Indoor Arena in 2007

Author Cls14 Licence CC BY-SA 3.0 Source Wikimedia Commons

 

Jane Lambert

An "association right" is a monopoly of the commercial exploitation of a major sporting event. It is usually conferred by statute on the body responsible for delivering the event.  Governments promise to enact such legislation when one of their cities bids to host the event.  An example of the obligation undertaken recently by the Japanese government is to be found in Part VII of the Host City Contract for the 23rd Olympiad dated 7 Sept 2013 between The International Olympic Committee, the City of Tokyo and the Japanese Olympic Committee,  I first discussed association rights in Olympics Association Right and London Olympics Association Right in NIPC Law on 31 July 2012.

Parliament has conferred a similar monopoly upon the “Birmingham Organising Committee for the 2022 Commonwealth Games Ltd” ("the Organizing Committee") by s.3 (1) of the Birmingham Commonwealth Games Act 2020.  I discussed that legislation during its passage through Parliament in Birmingham Commonwealth Games Association Right on 12 Jan 2020.   It is to be noted that no similar monopoly was conferred upon Glasgow 2014 Limited which delivered the Commonwealth Games in Glasgow by the Glasgow Commonwealth Games Act 2014.

S.9 (1) of the Birmingham Commonwealth Games Act 2020 required the Organizing Committee to publish guidance about the operation of the legislation conferring association right within 31 days of the passing of the Act.   In accordance with that requirement, the Organizing Committee has published a 14 page booklet entitled Guidance on the Birminghm Commonwealth Games Act Association with the Games.  In its Introduction the booklet explained:

"The Commonwealth Games Federation (www.cgf.com) owns the rights to the Commonwealth Games and grants the rights to host the Commonwealth Games to cities based in the Commonwealth, such as Birmingham. When Birmingham was awarded the right to host the 2022 Commonwealth Games (the “Games”), the UK Government, as part of its hosting commitments, was required to put legislation in place to protect the intellectual property of the Games and the indicia relating to the Games against any unauthorised use, thereby managing public investment in the Games."

It should be made clear at this point that International Olympic Committee  owns the intellectual property rights in the Olympic Treaty by virtue of the Nairobi Treaty on the Protection of the Olympic Symbol and national legislation such as the Olympic Symbol etc. (Protection) Act 1995. There is no equivalent to the Nairobi Treaty or the 1995 Act in favour of the Commonwealth Games Federation.   In my previous article I referred to the Commonwealth Games Federation Constitution of 2019.   It has been updated by the Federation's constitution of 2019.   It has now been updated to October 2020.

 The introduction continues:

"!The Act is intended to be proportionate and not unnecessarily restrictive. It will be enforced reasonably with a view to being positive, to enhance the operation and delivery of the Games in Birmingham in 2022, and, not to overly restrict the operation of legitimate local and/or national businesses in the area."

The steps likely to be taken by the Organizaing Committee if it suspects an infringement are set out on page 8 of the guidance.   It would try to resolve disputes amicably wherever possible while reserving the right to apply for injunctions, delivery up of infringing materials, damages or an account of profits and costs where necessary.  Infringement proceedings could be issued out of the Birmingham District Registry as well as London and applications for interim injunctions could be sought from the judges sitting in Birmingham or other Chancery hearing centres (see CPR 63.13 and para 16 (1) (6)  and (2) of the Part 63 Practice Direction).

Page 4 of the guidance explains the effect of the Act in everyday terms.   Page 5 identifies the signs that are protected by the legislation.   Page 6 explains what is likely to be regarded as representing a connection and also what is not.   That is supplemented by a useful appendix of examples of permitted and prohibited usage on pages 12, 13 and 14.   Page 10 explains how to obtain authorization to represent a connection with the games.   Further information is supplied in the No Marketing Rights Protocol.

Anyone wishing to discuss this article or association rights in general may call me on 020 7404 5252 or send me a message through this form.

Intellectual Property and Birmingham's Commonwealth Grounds Bid

The National Indoor Arena, Birmingham

Author Cls14 at English Wikipedia
Licence Creative Commons Attribution-Share Alike 3.0 unported

Jane Lambert

On Friday 29 Sept 2017 Karen Bradley MP, Secretary of State for Culture Media and Sport, announced that Birmingham would be the UK's candidate city to host the 2022 Commonwealth Games (see Press release Government confirms Birmingham bid for the Commonwealth Games 2022 29 Sept 2017).

The Commonwealth Games Federation ("the Federation"), the body that organizes the Commonwealth Games, describes them as " a unique, friendly, world class, multi-sports Games, which is held once every four years" (see Commonwealth Games FAQ).  The Games are open to athletes who are citizens of the 52 member states of the Commonwealth or the dependent territories of those member states. Over 5,000 athletes from 70 teams are expected to compete at the next Commonwealth Games in more than 15 different sports and over 250 events.

Cities that have hosted the Games report tangible and lasting benefits.  In the Commonwealth Games Manchester 2002 A Prize Worth Winning? the Manchester Commonwealth Games legacy report noted:

"The area which was once known as the workshop of the world had been in steady decline for the last 30 years. Large-scale de-industrialisation had a huge and devastating effect on employment Plans had been in place since the early nineties for the regeneration of this area. However, the hosting of the Games and the decision to site the stadium in this area was the catalyst needed. This was the focus which attracted a range of other initiatives to New East Manchester.
Is it working? This is a long-term regeneration strategy but one year after the Games how many of these lofty ambitions are now starting to be realised.
Will there be A New Town In The City?

• Over the next 15 years New East Manchester is expected to secure over £2 billion in public and private funding. 

• The momentum gained from the investment in world class sporting facilities at SportCity presents a new image to the commercial world. There has been a quantum shift in perceptions of the area from current and prospective residents and investors.

• The New Business Park development is expected to create over 6000 jobs. The development of a new retail centre, four star hotel and the new housing developments are expected to create 3,800 jobs for the people of East Manchester.

• Manchester City Football club as the new resident in the City of Manchester stadium is drawing nearly 40,000 people to the streets of East Manchester for each of its� home games.

• There is a renewed sense of pride in the area. New canalside homes are being built and the metro link lines lay to provide a rapid transport link to the city centre.

Without the impetus provided by the Games investment on this scale could not have been secured."

Like other major international sporting events, the Commonwealth Games will be funded:

"Through the sale of international broadcasting rights; corporate sponsorship programmes; ticket sales; licensing and merchandising sales; and contributions from Central and Local Government" (see Commonwealth Games FAQ).

I have not yet found any statistics as to how much each of those revenue  streams contribute to the Commonwealth Games but Professor John T Gourville of Harvard and Professor Marco Bertini of the London Business School estimated that of the US$2.8 billion revenues generated by the Sydney Olympics some $1.3 billion came from broadcasting, $892 million from domestic and international sponsorship and only $551 million from ticket sales (see Jane Lambert Olympics Association Right and London Olympics Association Right 31 July 2017 NIPC Law).

In order to protect those revenues, the Nairobi Treaty provides special protection for Olympic symbols. The International Olympic Committee requires the government of every host city to create new intellectual property rights known as "association rights" to prevent ambush marketing and other unauthorized exploitation of the Olympics (see Olympics Association Right and London Olympics Association Right supra). To implement the Nairobi Treaty, Parliament enacted the Olympic Symbol etc. (Protection) Act 1995. After the 2012 Games were awarded to London, Parliament passed the London Olympic Games and Paralympic Games Act 2006, London Olympic Games and Paralympic Games (Amendment) Act 2011 and Sunday Trading (London Olympic Games and Paralympic Games) Act 2012.

There is no similar treaty or legislation in the UK to protect the Commonwealth Games symbols but the Federation has registered the initials "CGF",  the words "COMMONWEALTH GAMES" and a device known as "The Bar" as UK trade marks for goods and services in classes 14, 16, 25, 38 and 41 with effect from the 9 Nov 2000 under registration numbers UK00002252153, UK00002252159 and UK00002252160. Clause 18.1 of the Federation's Bylaws requires it to establish and maintain The Bar" as an official emblem. All rights relating to that emblem shall belong exclusively to the Federation. It is also required by 18.2 to establish and maintain an official flag which will consist of The Bar set on a white background featuring "CGF" above "The Bar". All rights related to the flag shall also belong exclusively to the Federation. The Federation is permitted by clause 18.3 to establish a symbol or symbols of the Commonwealth Games. All rights related to such official symbol or symbols shall belong exclusively to the Federation.  The "Commonwealth Games Intellectual Property" is defined by clause 18.4 as:

"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."

Clause 19.1.1 provides:

"The Commonwealth Games Intellectual Property is the exclusive property of the Federation and the Federation owns all rights concerning its use, organisation, exploitation, broadcasting and/or reproduction by any means whatsoever."

Subject to its Constitution, Bylaws and regulations, the Federation has the exclusive right to exploit the Commonwealth Games Intellectual Property in any way that it sees fit.  No other entity has any right in respect of the Commonwealth Games Intellectual Property or any representation of it without the express written approval of the Federation. However, the Executive Board of the Federation is authorized to assign or otherwise deal with the right to exploit commercially part or all of the Commonwealth Games Intellectual Property to one or more affiliated Commonwealth Games associations ("CGA") and/or the organizing committee ("OC") of a host city on such terms and conditions as it sees fit. The decision to assign or otherwise deal with the Commonwealth Games Intellectual Property is at the sole discretion of the Executive Board. Affiliated CGAs and OCs must vest in the Federation any intellectual property to which the Federation is entitled pursuant to the Federation's Constitution, Bylaws and regulations.

The Federation reserves the right under clause 19.2 "to exploit commercially all broadcast and/or narrowcast and/or any other form of communication rights relating to the transmission of the Commonwealth Games to the public, including those related to television, radio, internet and television and radio archives, on a worldwide basis."  It also reserves the right to exploit commercially sponsorship rights in relation to the Commonwealth Games and Commonwealth Games Intellectual Property on a worldwide basis though the Executive Board is authorized to assign any or all of those sponsorship rights to the Host CGA and/or the Organizing Committee on such terms and conditions as it sees fit. Sponsors of the Games or of the Queen's Baton relay may be named as official sponsors of those events.

Clause 19 B.1 of the Bylaws provides that a Commonwealth Games team is the exclusive property of the affiliated CGA in its territory and that the affiliated CGA owns all rights concerning its organization and exploitation by any means whatsoever. Commonwealth Games England has registered the image of a rampant lion above the words "We are ENGLAND" in colour and monochrome as a UK trade mark for a range of goods and services in classes 6, 9, 16, 18, 25, 28 and 41 with effect from 18 Sep 2009. That mark appears in the top left-hand corner of the home page of Commonwealth Games England. That same CGA has also registered "ENGLAND COMMONWEALTH GAMES DELHI 2010 OFFICIAL FRIEND" as a trade mark for the Delhi Games. A number of earlier marks have expired.

Subject to the written approval of the Federation, clause 19 B.3 of the Bylaws requires each affiliated CGA to incorporate The Bar along with a design of its own choosing to make its own emblem. Subject to the CGF Documents and the directions from time to time of the Executive Board, clause 19 B.4 assigns to all affiliated CGAs the right to exploit commercially the official emblem as incorporated into the emblem of the affiliated CGA within their own territories but not outside them.

Clause 19.C.1 of the Bylaws requires each OC to incorporate the Bar along with a design of its own choosing to make its own emblem.  The emblem of the Glashow Games consisted of the letter "G" in a number of circles above the words "GLASGOW 2014" and "XX Commonwealth Games" above The Bar against a green background.  The emblem is reproduced in the top left-hand corner of the home page of the Glasgow Games website. If the Federation chooses Birmingham to host the 2022 Commonwealth Games the emblem of those Games will be a heart surrounded by a burst of colours above the words "BIRMINGHAM 2022" and "XX COMMONWEALTH GAMES" over The Bar and the slogan "HEART OF THE UK, SOUL OF THE COMMONWEALTH". Birmingham City Council applied to register that emblem as a UK trade mark for goods and services in classes 6, 14, 16, 18, 25, 28 and 41 on 31 Aug 2017 under number UK00003253631. That mark appears in the centre of the home page of the Birmingham 2022 website.

When the Games came to Manchester in 2002 a number of intellectual property, contractual and commercial issues arose and I was asked to advise on some of them. I expect similar issues to arise in 2022. Anyone who wishes to discuss this post or any other issue relating to IP and sport should call me on 020 7404 5252 during office hours or send me a message through my contact form.