In the last week of January, the British Olympic Association (“BOA”), the UK’s National Olympic Committee, published updated Guidelines for brands wishing to use athletes’ images for advertising purposes during the Beijing 2022 Winter Olympics. The Guidelines concern the application of the infamous Rule 40 – the rule surrounding how athletes and teams can (and cannot) use their name and image to endorse products and services during the Olympics.

This article discusses new key compliance implications for athletes and officials (together “Participants”), as well as the brands sponsoring them, wishing to utilise the marketing opportunities which the Olympics present.

What is Rule 40?

Historically, Rule 40 of the Olympic Charter of the International Olympic Committee (“IOC”) has been the source of a blanket ban of advertisement campaigns involving competitors, staff or officials during the Olympic Games. Designed to protect the IOC’s global-level sponsors, until late 2019, bye-law 3 of Rule 40 (Rule 40.3) read as follows:

“Except as permitted by the IOC Executive Board, no competitor, coach, trainer or official who participates in the Olympic Games may allow his person, name, picture or sports performances to be used for advertising purposes during the Olympic Games.”

However, a 2019 ruling by Germany’s national competition watchdog concluded that Rule 40.3 was “too far-reaching”. Accordingly, German Olympic athletes were relieved from their obligations to obtain pre-approval for marketing campaigns with the country’s National Olympic Committee. As a result of the ruling, the IOC agreed to relax the advertisement ban and in late 2019 amended Rule 40.3 to the following version, which remains in place today:

“Competitors, team officials and other team personnel who participate in the Olympic Games may allow their person, name, picture or sports performances to be used for advertising purposes during the Olympic Games in accordance with the principles determined by the IOC Executive Board.”

In May 2021, the BOA released its own Rule 40 guidelines for Participants in the Tokyo 2020 Summer Olympics, while in December 2021, the IOC itself followed suit by implementing global guidance on the interpretation of Rule 40, titled Key Principles of Use of Participants’ images for Advertising (“Key Principles”).

The Key Principles recognise that implementation may vary on a national level, based on country-specific guidance by the relevant National Olympic Committee. In the UK, implementation of the Key Principles has been achieved through the publication of the Guidelines.

The Guidelines: Key takeaways

The Guidelines govern the use of the name and image of Participants during the period of 27 January 2022 – 22 February 2022 ( “Games Period”). They only apply to brands which are not part of Beijing 2022 or Team GB’s Official Partners.

Generic Advertising

As a general principle, brands who sponsor a Participant in Beijing 2022 are permitted to use their image during the Games, if all of the following conditions are met:

• Consent: they have obtained the Participant’s prior consent;
• IP: the advertising is generic and does not contain any references to or intellectual property (e.g. logos, images) of the Games, the Olympic movement or Team GB. In Beijing 2022, this would include re-tweets of official Team GB or Olympic posts which may suggest a commercial association; and
• Notification and deadlines: the brand has notified the BOA – and the advertising has been in- market – by 13 January 2022 (or by 27 January 2022 if the Participant depicted is selected after 13 January), and is run consistently in both nature and frequency during the Games Period. In practice, this means that brands can no longer commence new advertising campaigns featuring a Participant, until at least 22 February 2022.

The Guidelines provide that exceptions to these rules will be considered by the BOA on a case- by-case basis.

Supportive and congratulatory messaging

Under the Guidelines, supporting messages which encourage, commiserate with or otherwise support a Participant in connection with their participation at Beijing 2022, as well as congratulatory messages praising the Participant,, will not be regarded as being “Generic Advertising”, because of the intrinsic connection with the Winter Olympics.

Therefore, during the Games Period, brands are not allowed to undertake supporting or congratulatory advertising in support of Participants. They will only be allowed to publish such messages after the Games Period, provided that they do so without making any direct references or use the intellectual property of Team GB or the IOC.

“Thank you” messaging

In recognition that Participants will want to post messages of thanks to their sponsors who have supported them on their journey to Beijing 2022, Participants will be permitted to post thank you messages on their personal social media channels and personal website, subject to the following maximum limits:

• one message for each personal sponsor per event;  one message per sponsor on any one day;
• three messages per sponsor throughout the Games Period; and
• a maximum of ten ‘thank you’ messages per Participant throughout the Games Period.

Additionally, the posts:

• cannot contain any Olympic branding (e.g. a medal, or Team GB kit) or references, nor promote or endorse specific products or services. Posts can contain generic references to e.g. “gold”, “silver” or “medal” etc, provided there is no Olympic association;
• cannot contain any Olympic or Team GB-related intellectual property and must not include any images from the Games;
• cannot state or imply that a product or service enhanced the Participant’s performance in the Games.

Other relevant restrictions

Notwithstanding the relaxation of Rule 40, there remain a number of absolute prohibitions relating to marketing promotions during the Olympic Games in the UK, which go beyond the advertising rules outlined in the Guidelines. These stem from the Olympic Symbol Protection Act 1995 (“OSPA”). Under Section 2 of OSPA and accompanying regulations1, BOA is granted exclusive rights in relation to “Controlled representations” involving any of the following marks:

• the “five rings” Olympic symbol;
• the Olympic motto (“faster better stronger”); and
• the words “Olympiad”, “Olympian”, “Olympic(s)”, “Paralympiad”, “Paralympian” and “Paralympic(s)”.

Under Section 3(2) of OSPA, a person uses a “controlled representation” of the marks listed above if they, amongst other things:

• affix it to goods or the packaging thereof;
• incorporate it in a flag or banner;
• put on the market goods which bear it or whose packaging bears it;
• use it on business papers or in advertising.

It should be noted that under Section 8 of OSPA, breach of the legislation can lead to criminal sanctions. Therefore, regardless of BOA’s relaxation of Rule 40, brands must avoid the use of Olympic or Paralympic symbols or words in advertising and on packaging unless they have BOA’s prior permission to do so. Nevertheless, the recent changes provide much-needed flexibility for brands and Participants alike.

Do you require further assistance in the structuring of your sponsored athlete(s)’ “thank you” messages? For this and any other sports related queries please do contact our dedicated team of Sports Lawyers who are on call to provide urgent legal advice and assistance with your matter, in the run up and during the Beijing 2022 Winter Olympics.

[1] Olympics Association Right (Appointment of Proprietor) Order 1995 SI 1995/2473