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.

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 2006, London 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.