I EXHORT YOU (while I can) “to please sponsor me to run the London Marathon in 2012, as it will take me at least that long to prepare”.

However long my preparation, I will be restricted in my exhortations — if not my exertions — by the London Olympics Bill which is before Parliament.

The Bill, due shortly to enter the committee stage, is a result of contractual obligations entered into by the Mayor of London, Ken Livingstone, with the International Olympic Committee (IOC). The committee has dictated that, in order to protect the sponsors’ rights from ambush marketing, Parliament must create the London Olympics Association Right (Loar). This law will presume an infringement of Loars where the words from Category 1 and Category 2 below are used together.

Category 1.“Games”, “2012”, “twenty twelve”, “two thousand and twelve”;

Category 2.“London”, “summer”, “sponsor”, “medals”, “Gold”, “Silver”, “Bronze”.

The presumption of infringement will, almost uniquely in English law, reverse the usual burden of proof requiring a person asserting a right and its infringement to prove their case of infringement. Instead, under the proposed Bill, an accused will be obliged to show his or her innocence by rebutting the presumed infringement of this new right.

The proposed legislation apprehends fines of up to £20,000, plus costs, and the destruction of any offending publications.

This pernicious double whammy of presumed guilt and heavy fines will undoubtedly mean that the public will be obliged to employ specialist lawyers to fend off claims — the alternative will be to cautiously self-censor: which is assuredly what is wanted by the IOC and undoubtedly what will happen in practice.

It is, perhaps, an ironic consequence that poor protesters who don’t want the Games will feel chilled in their freedom to speak critically: no longer, where workers are fighting for their jobs, in Marshgate Lane, Stratford, will their banners scream, “No London 2012 Games — Jobs not Jumps”.

As may be seen, the new legislation will also have unwanted consequences — an innocent use of words will lead to the presumption of an offence having been committed. For example, The Silver Vaults in London’s Chancery Lane will not be able to advertise their annual “Silver sale — summer 2012”.

How did we get to this position? Over the past ten years, there have been rapid developments around the world in the protection of “official sponsors” of leading sporting events. The catalyst was the Winter Olympic Games in Lillehammer, 1994, when Amex ambushed Visa, then the official credit card sponsors. Unofficial ads with the Amex logo appeared around the Games advising: “If you are travelling to Lillehammer, you will need a passport but not a visa.”

By the Atlanta Games in 1996 ambush marketing was an art form with specialist agencies. The IOC’s reaction was to insist on the introduction of legislation for the 2000 Sydney Games. Copycat criminal legislation was also passed in South Africa to protect the Cricket World Cup in 2003. Tougher legislation was introduced in Greece for the 2004 Games and in Portugal for Euro 2004.

Significantly, South Africa’s Merchandise Marks Amendment Act 2002 and Portugal’s Decree — Law S6/2004, as well as the Greek legislation, target ambush marketing and false claims of sponsorship only; they do not presume guilt. The proposed London legislation, going much, much further, is calculated to have a more insidious impact.

It should be recalled that the IOC is already the owner of a range of trademarks and copyrights that should be enough to deal effectively with the enforcement of its legitimate rights. For example, the five-ring logos, the words Olympics, Olympiad, Olympian, Paralympic, etc, are already fully protected.

This intimidating legislation will undoubtedly be a beanfeast for lawyers (rightly) seeking to enforce the IOC’s trademarks. But will it be the end of ambush marketing? I doubt it — those setting ambushes are nearly always one step ahead of the unimaginative bureaucrats. By way of example, by 2012 I hope to have learnt sufficient French (not prescribed by the new Right) to say to those dismounting Eurostar in Stratford’s International Terminal: “Sponsorisez-moi pour le Marathon en deux mille douze.”

The author is the head of media and international law at Finers Stephens Innocent LLP

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