Brazil Adopts Legislation to Curb Ambush Marketing During the 2016 Summer Olympic Games in Rio de Janeiro

Shortly after Rio was elected to host the 2016 Summer Olympic and Paralympic Games the national Congress has passed Law 12.035 of 1 October 2009 named "The Olympic Act".

The Olympic Act contains a number of special rules required for the carrying out of the Olympic Games among them specific provisions designed to protect the official symbols and curb Ambush Marketing during the events.

Under article 6 federal authorities are responsible to control, oversee and suppress any unlawful acts which violate the rights of the symbols in connection with the Rio 2016 Games.

The Olympic Act broadly defines the symbols as:

I. all graphically distinctive signs, flags, mottos, emblems and anthems used by the International Olympic Committee – IOC;

II. the names "Olympic Games", "Paralympic Games", "Rio 2016 Olympic Games", "Rio 2016 Paralympic Games", "XXXI Olympic Games", "Rio 2016", "Rio Olympics", "Rio 2016 Olympics", "Rio Paralympics", "Rio 2016 Paralympics" and other abbreviations and variations and also those equally relevant which may be created for the same purposes, in any language, including those in connection with internet website domains;

III. the name, emblem, flag, anthem, motto and trademarks and other symbols of the Rio 2016 Organizing Committee; and

IV. the mascots, trademarks, torches and other symbols in connection with the XXXI Olympic Games, Rio 2016 Olympic Games and Rio 2016 Paralympic Games.

Further, the Olympic Act expressly dictates that unless previously and expressly authorized by the Rio 2016 Games Organizing Committee or the IOC, the use of any symbols in connection with the Rio 2016 Games, whether or not for commercial use, is forbidden.

Also, the act aims Ambush Marketing practices in article 8 where the above prohibition is enlarged to also cover the use of terms and expressions which, albeit outside the list of symbols mentioned in this Law, are "sufficiently similar to them to the extent that they are able to invoke an undue association of any products and services whatsoever, or even any company, transaction or event, with the Rio 2016 Games or Olympic Movement".

In an effort to guarantee advertising spaces it is provided that during the period between 5 July and 26 September 2016, the contracts executed for the use of advertising space in airports or federal areas of interest to the Rio 2016 Games are suspended under the condition of a duly grounded request submitted by the Rio 2016 Organizing Committee for the exclusive use of the space.

It should be noted that the above measures introduced with the Olympic Act complement the already existing rules which can be used to obtain protection for the Olympic Symbols and curb Ambush Marketing. The rules include I. the Nairobi Treaty for the protection of the Olympic Symbol;

II. the prohibition provided in the Brazilian Industrial Property Law No 9279/96 against the registration as marks of names, prizes or symbols of official sporting events, as well as imitations likely to cause confusion, except when authorized by the competent authority or entity promoting the event;

III. the provision of the Pelé Law No 9615/98 which grants to the Brazilian Olympic Committee the exclusive rights in relation to the flags, Olympic symbols, as well as to the names "jogos olímpicos", "olimpíadas", "jogos paraolímpicos", "paraolimpíadas".

IV. the copyright protection afforded to symbols, designs and mascots as well as any other works;

V. the protection afforded to the name and image (likeness) of the athletes under our civil code as well as Lei Pelé;

VI. rules against unfair competition provided in international agreements such as CUP and TRIPS and in the Brazilian Industrial Property Law;

VII. rules against unjust enrichment provided in the Brazilian Civil Code;

VIII. specific rules against Ambush Marketing provided by the Code of Ethics of CONAR the Brazilian Advertising Self- Regulation Council (in Portuguese). It is a private entity created in 1980 by local advertisers, advertising agencies and media companies.

Although there are many rules and regulations in place, fighting "Ambush Marketing" is a difficult task in view of "creative efforts" by non official sponsors and the fact that the rights of official sponsors must be balanced against the legitimate marketing efforts of third parties.

The number of advertisements expressly using the official Olympic logos and names which appeared in Brazilian newspapers, websites, television stations and magazines immediately following the announcement of Rio as the host city provides a clear measure of the work which will have to be carried out by the local organizing committee to enforce the valuable rights to the event.

Finally, it should be noted that a similar legislation which will apply to the World Soccer Cup 2014 is under consideration in the Brazilian Senate the current bill being number PLS 394/2009.