Is it rogue or is it ambush marketing? With hockey helmet toques, a front tooth blackout marker, Canada-emblazoned hoodies, and Eh? t-shirts, it calls out to the inner hoser in all of us. The latest news is that manifesto-driven, zen-making sportswear company Lululemon Athletica is getting cheeky in the pre-Olympic season. Lululemon launched a special edition clothing line this week: the “Cool Sporting Event That Takes Place in British Columbia Between 2009 & 2011 Edition.” The Hudson’s Bay Company is the official clothing sponsor of the Vancouver 2010 Winter Olympics. This is one way to get the attention of Olympic organizers.
Every four winters (or every two years, counting summer seasons) a buzz of ambush marketing reaches a peak with the countdown to a new Olympic Games event. It is in part a practical marketing issue, and in part a theoretical trade-mark issue. First, there are words and graphics used in advertising or on product. Second, there is the issue of the context in which they are used. The history of the protection of OLYMPIC and related trade-marks in Canada follows a string of litigation ranging from the level of protection accorded to official marks (versus “regular” trade-marks), to the level of government control required to be a public authority that can own official marks, to the protection of human stick figure logos. However, some of the most interesting disputes over the use of Olympic, or Olympic-like, marks, logos and slogans never make it to the courts. For example, this past summer, The Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC) decided not to pursue a dispute over the use of a stick-figure pictogram by a gay men’s chat line. During the last Winter Olympic Games, Imperial Oil caught the ire of VANOC with its Esso “Cheer on Canada/Torino, Italy” contest, which offered the winner a travel package with “tickets to see Canada’s National Men’s and Women’s hockey teams play in Torino, Italy.” VANOC took the (PR) position that the contest attempted to “create an association” with the Torino 2006 Olympic Games, would hinder fundraising for the Vancouver 2010 Games, and improperly used Olympic event tickets as prizes. Petro-Canada is the official oil and gas partner of the Vancouver 2010 Winter Games. However, Imperial Oil is a long-time sponsor of Hockey Canada, who runs Canada’s national hockey team programs. The “Cheer On Canada” contest did not use the word OLYMPIC, any interlocking ring logos, flame graphics or human stick figures. In the end, VANOC announced that Imperial Oil had agreed to “modify” the contest “so that it [was] no longer associated with the 2006 Olympic Winter Games and Canada’s Olympic Team.”
By 2007, new Canadian legislation was passed: the Olympic and Paralympic Marks Act (OPMA). The purpose of the legislation is to protect marks related to the Olympic Games, and to protect against “certain misleading business associations” with the Olympic Games. In other words, while most Olympic marks are protected in Canada as official marks under the Trade-marks Act, the OPMA is intended to give these marks further special protection against ambush marketing activities. Its provisions include, among others, a time-limited protection to certain Olympic or Paralympic marks. Also, the OPMA prohibits the use of trade-marks or other marks to direct public attention to one’s business in a manner that misleads or is likely to mislead the public into believing that there is an official Olympic approval, authorization or endorsement, or that a business association exists with the Olympic or Paralympic Games or its related official organizations. The OPMA sets out specific lists of expressions or words for which use is prohibited in combination with other identified expressions or words (the lists include words such as GAMES, 2010, TWENTY-TEN, MEDALS, WINTER, GOLD, SPONSOR, VANCOUVER, WHISTLER). There are certain limited, specific exceptions to the rule, most notably for Olympic athletes, news reports, criticism or parody, artistic works, geographic indications identifying a wine or spirit, and descriptive elements as may be necessary to describe wares or services to the public.
Where does this leave us with the Cool Sporting Event That Takes Place in British Columbia Between 2009 & 2011? According to Canadian Press, VANOC is reviewing Lululemon’s new clothing line, but believes it breaks the spirit of the regulations. Lululemon claims that it did its research, and is playing by the marketing rules. Offside? Unsportsmanlike? We’ll see.
This blog entry represents the views of the author personally. It is not affiliated with Stohn Hay Cafazzo Dembroski Richmond LLP or any of its clients.