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BCLR Step Ahead Newsletter No. 4/2009 Suretyships are a danger to your financial health
2010 FIFA World Cup™ in South Africa - the Do's and mostly the Don'ts Employment Opportunities for Candidate Attorneys Series of articles for entrepreneurs entitled "Law & the Entrepreneur" published by BCLR in:  |
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2010 FIFA World Cup™ in South Africa - the Do's and mostly the Don'tsWith the countdown to the 2010 FIFA World Cup™ in South Africa having passed the 500 days mark and fast approaching the one year barrier, it would be an appropriate time to assess one's plans to somehow commercially benefit from the event against the relevant legal constraints, to avoid disappointment or embarrassment come the big day. The rights to commercially use the official marks of FIFA(1), the world governing body for football, for promotional or advertising purposes are strictly limited to certain selected rights holders, including FIFA's partners, sponsors, national supporters and licensees, who have all contributed financially to the staging of the event. Apart from the standard protection afforded to FIFA's trade marks and other intellectual property rights, through the Trade Marks Act 1993, the Copyright Act 1978, the Counterfeit Goods Act 1997, the Advertising Standards Authority's Code of Advertising Practice and the common law relating to passing off, particular notice should also be taken of the provisions of the Trade Practices Act 1976 and the Merchandise Marks Act 1941. Trade Practices Act Section 9(d) of this Act provides that no person shall "in connection with a sponsored event, make, publish or display any false or misleading statement, communication or advertisement which represents, implies or suggests a contractual or other connection or association between that person and the event, or the person sponsoring the event, or cause such statement, communication or advertisement to be made, published or displayed." The definition of 'advertisement' is very wide and it is evident that the 2010 FIFA World Cup™ would qualify as a 'sponsored event'. Therefore, without the prior permission of FIFA, no person should commercially represent any association between that person, its goods or services and the 2010 FIFA World Cup™. Contravention of the above provision constitutes an offence. Merchandise Marks Act The Minister of Trade and Industry has designated by regulation(2) the 2010 FIFA World Cup™ as a 'protected event' in terms of section 15A of this Act. Section 15A(2) provides that "no person may use a trade mark in relation to such event in a manner which is calculated to achieve publicity for that trade mark and thereby to derive special promotional benefit from the event, without the prior authority of the organizer of such event." For the purposes of section 15A(2), the use of a trade mark includes:
which in any way, directly or indirectly, is intended to be brought into association with or to allude to an event. Therefore, without the express prior consent of FIFA, no person is entitled to advertise or promote their businesses or brands either physically around the 2010 FIFA World Cup™ events (i.e. at, outside or above the stadia), or conceptually (i.e. referencing the event in its advertisements). Any person who contravenes section 15A(2) shall be guilty of an offence. In addition, in terms of section 15(1), the Minister may prohibit either absolutely or conditionally the use of any mark, word, letter or figure or any arrangement or combination thereof, in connection with any trade, business, profession, occupation or event, or in connection with any trade mark, mark or trade description applied to goods. Amongst others, the Minister has by regulation(3), which should be read with section 15A(2), prohibited the use of the marks '2010 FIFA', 'World Cup South Africa', 'Football World Cup', 'FIFA World Cup', '2010 FIFA World Cup', 'Soccer World Cup' and 'Confederations Cup' in connection with the 2010 FIFA World Cup™. The above prohibited marks are not a full list of FIFA's trade marks in relation to the 2010 FIFA World Cup™ and the use of its other trade marks or marks similar thereto may off course be unlawful in terms of the general principles of intellectual property law. The moral of the story is therefore that a company or person should take great care not to create the impression of any commercial association with the 2010 FIFA World Cup™. Unauthorised ticket promotions, competitions and the commercial use of match schedules will in all likelihood be unlawful. The unauthorised use of emblems, slogans, marks or other references to the event on merchandising items, or for decorations in a shop or restaurant, would similarly be unlawful. Advertisements and promotional activities may however refer to general football terms or imagery or to football in South Africa, without creating an association to the event itself. Special considerations apply to the media covering the event, as well as in respect of websites, domain names and other information technology aspects. There are however ways for third parties, who are not FIFA rights holders, to benefit from the 2010 FIFA World Cup™. For example, entities can offer to supply its goods or services for events and other promotional activities staged by any of the host cities or the FIFA rights holders, as well as for general infrastructure and logistics projects. A product licence can potentially be purchased from FIFA for the production of official licensed merchandise. Third parties may conduct general football promotions or support local football without creating an association to the 2010 FIFA World Cup™. Business in the country as a whole will hopefully also benefit in general from the increased activity as a result of the anticipated influx of foreign visitors. It is recommended that legal advice be sought for guidance on specific intended practices or activities. FIFA's Public Information Sheet (a guide to FIFA's Official Marks) can also be referenced on its website(4). Leroux Odendaal
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