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Tough laws to protect RWC sponsors

By Ruvini Rendle, Associate

First published in the NBR 25 June 2010

New Zealand Rugby World Cup organisers must be watching with interest how issues of ambush marketing are being handled during the 2010 FIFA World Cup - the most eye-catching being the orange mini-dress wearing women who were part of a Bavaria beer promotion campaign.

The big issues facing those marketing themselves around the Rugby World Cup centre on the Major Events Management Act, MEMA, for short. Essentially, this legislation is designed to help organisers protect the interests of sponsors who fund such events and restricts how people might promote themselves during the Rugby World Cup.

At a very basic level, the MEMA makes it illegal for unauthorised parties to commercially exploit the event. Marketing can fall foul of the Act if the wording or imagery suggests an official connection with the event or if your marketing is present during specified times in specified places.

The Ministry of Economic Development has released guidelines on the MEMA (at www.med.govt.nz) and its application to the Rugby World Cup. The guidelines contain various practical examples of advertising activities that are likely to fall foul of the Act, as well as examples of what would be considered legal.

Use of wording or imagery

If advertising is not authorised by the event organiser and features wording and/or imagery that suggests an association, then it will contravene the MEMA. The Act provides for special protection for certain 'declared' words and/or emblems used in connection with an event. Any unauthorised advertising that features these words and/or emblems can be presumed to make an association. But, it’s important to note that this presumption can be challenged and overcome - if you can establish that an association was unlikely to result from the advertising.

Watch out at the border

The MEMA provides for New Zealand Customs Service to detain goods that come into New Zealand bearing declared words and/or emblems that are not official merchandise. The penalty for knowing use of declared words and/or emblems without authorisation can be as high as $150,000. A consignment of more than 1000 t-shirts bearing a Rugby World Cup declared emblem has already been seized by Customs, and the Ministry of Economic Development recently laid its first charges under the Act against CL NZ Trading Company Ltd and its director.

Placement of advertising

This is the second major form of protection against unauthorised commercial exploitation. It seeks to restrict advertising that is placed en route to an event and at the venue itself (or near by) during specified times. While the advertising doesn't have to contain words or imagery that suggest an association with the event, its mere proximity to the venue is considered to create the association. The Bavaria orange mini-dresses might fall into this category of ‘offending.’

Exceptions

The MEMA attempts to balance the rights of local businesses with the protections for event sponsors by providing a number of exceptions to the limitations on advertising. For instance, use of trade marks that were registered before 24 September 2007 (being the date that the Rugby World Cup was declared to be a 'major event' under the Act) will not breach the MEMA. Also, advertising that is considered to be in 'accordance with honest business practices' can continue.

Tread carefully

It is hoped that the Rugby World Cup will pump $507m into our GDP, bring more than 85,000 visitors to New Zealand and a collective television audience of four million. Naturally, New Zealand businesses will want to exploit this opportunity. Protections to safeguard the financial interests of sponsors mean that businesses need to tread carefully and be aware of the risks - while seizing the opportunity.

• Ruvini Rendle is an intellectual property specialist with national and trans-Tasman law firm Duncan Cotterill. R.rendle@DuncanCotterill.com

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.