Another Ambush? The Proposed Glasgow Commonwealth Games Association Right

by Phillip Johnson 18/02/2009

To give effect to this obligation, the Scottish Parliament enacted the Glasgow Commonwealth Games Act 2008. This provided certain laws to restrict ambush marketing by intrusion and certain forms of association (for example, the ban on street trading (ss. 2 to 9); the ban on advertising (ss. 10 to 16) and the restrictions on ticket touting (ss. 17 to 20)). However, as it is an Act of the Scottish Parliament it cannot include provisions in relation to intellectual property matters as these are reserved to Westminster (under the Scotland Act 1998). Instead, it is proposed that a statutory instrument will be made under section 104 of the Scotland Act 1998, which enables Minister to make such delegated legislation “as the person making the legislation considers necessary or expedient in consequence of any provision made by or under any Act of the Scottish Parliament…”.

It is an interesting point of public law whether any order under section 104 can be used to create a new quasi intellectual property right over the entirety of the United Kingdom, rather than just Scotland. It might be asked, how can it be expedient to make wide ranging significant and important legislation extending to England where the basic legislation relates only to Scotland? If this proposition were correct it would enable the Government to extend the effect of many Acts of the Scottish Parliament to the rest of the United Kingdom by enacting secondary legislation; a cynic might see this as reversing the devolution settlement.

The proposed new association right for the Glasgow Commonwealth Games will closely follow that granted under Schedule 4 to the London Olympic and Paralympic Games Act 2006. However, there is no protection granted to the Commonwealth insignia as provided to that for the Olympics and Paralympics under the Olympic Symbol (Protection, etc) Act 1995. Accordingly, even where a relevant insignia is used it will be necessary to go on to prove that an association to the Games was made.

The consultation notice suggests that the new Glasgow Commonwealth Games association right and the London Olympics association right will be the same in all significant respects. This means many of the problems identified with that legislation (see Phillip Johnson, Ambush Marketing: A Practical Guide to a Sporting Event (Sweet and Maxwell, 2007), ch 5) will be extended to new situations. Some additional issues which faces the Commonwealth Games, but not the Olympics, are that it has a lower profile and so the relevant public are less likely to draw the association; that the word “Commonwealth” has many uses outside the context of the Games (whereas the Olympics has very few). This would enable marketers and advertisers to make associations with the Commonwealth, rather than associate with the Commonwealth Games itself, and in so doing facilitate an effective ambush.

The actual drafting of this Order and exactly how the rights fit together is now awaited with baited breath.