A senior Wellington intellectual property consultant is warning Kiwis and small businesses hoping to take advantage of the commercial opportunities afforded by the Rugby World Cup that, when it comes to protecting the interests of the tournament's commercial partners, the authorities are likely to be just as vigilant as their FIFA companions were at the Football World Cup in South Africa. But not everyone thinks New Zealand's business opportunists will have their hands completely tied by the supposedly draconian rugby overlords.
Mobile AdVert has already been given a warning for treading too close to the RWC line in its marketing material (although that was from the outdoor media's industry body, not from the RWC authorities) and, despite numerous claims about the financial benefits the tournament will bring to the nation, Theodore Doucas of Zone Law and consultant for Zone IP, an intellectual property management consultancy in Wellington, is warning Kiwis that they could end up in hot water if they're not careful.
“Most New Zealanders are excluded by law from taking advantage of the event, at least overtly,” he says.
In South Africa a small businessman was prosecuted for selling key rings with the inscription ‘2010’ and another for producing football shaped lollipops, which prompted an outcry that the tournament’s rules went beyond the norms of democracy.
“The same could well happen here. Under the Major Events Management Act 2007, almost every conceivable reference to ‘Rugby World cup’ and ‘2011’ will be policed and people contravening the Act will almost certainly be sued,” he says.
A former assistant commissioner of patents, trade marks and designs at the Intellectual Property Office of New Zealand, Doucas says raffling world cup tickets or offering them as prizes in local fundraisers is illegal. Even creating a piece of art that isn’t authorised could end up on the wrong side of the law.
“A worthy cause is not a defence. Some people argue that this type of law contravenes the norms of democracy, but by the same token event organisers want to protect those paying big money for the rights to sponsor the event.”
He says there would likely be people who would be tasked with looking for offenders and even references to the ‘you-know-what’ and ‘twenty-eleven’ would contravene the Act.
“A bar or restaurant can advertise any games they may be showing on the big screen, so long as they’re careful not to imply any association with the tournament. It is a very fine line and if the South African experience teaches us anything, it will be enforced no matter how small or apparently ‘harmless’ the actions are. Small businesses will profit from the World Cup, but the reins are held very, very tightly. Basically, the idea is that nobody can make money out of this tournament unless they have the sanction of the organisers.”
Obtaining authorisation is not necessarily very difficult, but there would almost certainly be a cost depending on what was required.
Doucas says exceptions include those with Rugby World Cup authorisation, those expressing a personal opinion not for commercial gain, the media and anybody with a similar but existing legal trading name.
But Dan Winfield from A J Park offers another view.
"Many of our clients are looking to promote their products or services to visitors during the RWC. And we are working with them to help them to do so in accordance with the MEMA and without infringing other intellectual property such as trade marks and copyright," he says.
Winfield suggests New Zealand authorities are likely to take a firm, but sensible approach to enforcement.
“If you engage in ambush marketing in a clean zone you will be taking a serious risk—ditto if you try to import thousands of RWC branded t-shirts. But, the organisers are going to great lengths to educate businesses as to what they can and can’t do [see this useful MED guide here]. While there will be no sympathy for clear breaches of the MEMA, I do not expect anyone will be prosecuted for using ‘2011’ on its own. It’s all about context."
In his view, businesses need to look at their campaigns as a whole in light of the MEMA.
“It’s important that businesses recognise it is their marketing campaign as a whole, as well as each element of it, that needs to comply with the MEMA and other laws. There are some uncertainties about exactly what ‘suggests an association with the RWC’ means. But you can market your product or services during the RWC without looking like a sponsor or otherwise breaching the MEMA.”
If you want to know more about the MEMA and the RWC, a number of law firms, including A J Park, have written useful articles setting out the issues and what you need to think about in marketing and promotion around the event.