Major Events Management Act 2007

Major international events, such as the Rugby World Cup, capture a massive worldwide audience and thus present excellent advertising opportunities. The prospect of sponsoring such an event is therefore a lucrative and attractive one, but at what risk? In the past, major event organizers and sponsors have been ambushed by marketing campaigns that free-ride on their investments and on the publicity and goodwill created by the event without having to pay for sponsorship rights.

The Major Events Management Act is designed to prevent major event organizers and sponsors from being undermined by unauthorized commercial exploitation - commonly known as ambush marketing. The impetus for the legislation arose from New Zealand's successful bids to host the 2011 Rugby World Cup and 2015 Cricket World Cup; each bid included a commitment to ensure that there are adequate provisions in place to protect the event sponsors. The Act is also a means of ensuring that New Zealand remains a viable option to host such events. While the Bill that preceded the Act was in its early stages, the then Minister for the Rugby World Cup Trevor Mallard commented that:

"It is impossible to host major events these days without enormous financial contributions from large sponsors. These companies will not provide sponsorship dollars if others are allowed to manipulate public perceptions by falsely suggesting a link with these events."

The new Act attempts to provide protection above and beyond that found in existing legislation such as the Trade Marks Act 2002, Copyright Act 1994 and Fair Trading Act 1986 and the common law tort of passing off.

Ambush marketing can be broadly categorized into two main types - ambush marketing by association and ambush marketing by intrusion.

The explanatory notes to the Bill describe ambush marketing by association as involving "an unauthorised representation that there is an association between a major event and any good, service, or brand when in fact there is not". To illustrate, Anheuser-Busch paid more than US$50 million to become an official sponsor of the 2002 Winter Olympics in Salt Lake City and thereby obtained rights to use the word "Olympic" and the five rings logo. A local brewery then marked its delivery trucks with the slogan "Wasutch Beers. The Unofficial Beer, 2002 Winter Games". While the slogan deftly sidestepped the word "Olympic" and the five rings logo, it had nevertheless created an association with the 2002 Winter Olympics.

Ambush marketing by intrusion is described in the explanatory notes as "advertising that intrudes on a major event and the attention of the associated audience". Take, for example, the 1996 Atlanta Olympic Games where Nike purchased advertising space on a large number of billboards around the city, set up a giant Nike centre outside the main stadium and distributed flags bearing the "swoosh" logo to the crowds, which were later caught on television cameras. This was despite the fact that Reebok was the official sponsor of the Atlanta Olympic Games.

So when can an event be deemed a major event that is the subject of the protections contained in the Act? Certain criteria must be met. For example, the event must, at least in part, take place in New Zealand. A range of factors must also be considered. Will the event attract a large number of international participants or spectators? Will it significantly raise New Zealand's international profile and attract significant sponsorship and media coverage? What are the benefits to be gained for New Zealand or New Zealanders?

In preventing traders from trying to create an association between their goods and/or services and the major event, certain words and emblems will be off-limits. Once a declaration is made that specific words or emblems are to be protected, their use may be presumed to be in breach of the Act unless the exceptions apply. Further, the Act attempts to limit the making of representations that are likely to suggest that there is an association between a major event and certain goods and services or a brand or the person who provides the goods and services.

To combat ambush marketing by intrusion, the Act contains provisions which allow for the creation of clean zones and clean transport routes. Within the clean areas, advertising is prohibited unless the necessary authorisation is given. The prohibition extends to advertising that is outside a clean zone but is nonetheless clearly visible from inside the zone. Unauthorised street trading is also prohibited within the clean zones and transport routes. However, not all advertising is banned from the clean zones and transport routes. The Act contains a number of exceptions, the most notable of which relates to businesses being allowed to carry on their ordinary activities.

Streakers (those who run naked through public places without authorisation) and ticket scalpers (those who purchase tickets to an event and resell them) are also targeted by the Act. Pitch invasions constitute an offence under the Act, with streakers liable on summary conviction to up to 3 months imprisonment or a fine not exceeding $5,000. Ticket scalpers are also liable to a fine of up to $5000. It should be noted that in some cases, streaking can amount to ambush marketing. In 2002, during a Bledisloe Cup rugby test between New Zealand and Australia, a pair of streakers took to the field with the Vodafone logo painted on their bodies.

Protection of this kind is becoming more common throughout the world. While New Zealand has adopted legislation that can be used and adapted for many different major events, other countries have leaned towards event-specific legislation, for example:

• Australia enacted the Sydney 2000 games (Indicia and Images) Protection Act 1996 specifically for the 2000 Sydney Olympic Games;
• the United Kingdom has enacted London Olympic Games and Paralympic Games Act 2006 in anticipation of the 2012 London Olympic Games;
• the Canadian Olympic and Paralympic Marks Act received the Royal Assent in June 2007, in anticipation of the 2010 Vancouver Winter Olympic Games;
• the ICC Cricket World Cup West Indies 2007 Act was enacted specifically for the 2007 Cricket World Cup.

The London Act, which entered into force in March 2006, takes a more open-ended approach to addressing the issue of advertising and street trading. While the New Zealand Act creates clean zones and transport routes, the London Act merely allows for the making of regulations about advertising and street trading in the vicinity of Olympic events.

Initially the London Olympic Bill contained a presumption that the unauthorised use of the protected terms would amount to infringement. However, in the face of stern opposition to this presumption, the Bill was amended and as a result the London Act does not contain an automatic presumption of infringement. The British courts may only "take account of" the use of the protected expressions. By contrast, under the New Zealand Act, the courts "may presume" that a representation is infringing if that representation makes use of protected words or emblems.

The effectiveness of the Act will undoubtedly be tested at the 2011 Rugby World Cup to be hosted by New Zealand; it has already been declared a major event.