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Lord Carter: I am grateful to the Minister. She said that what was proposed in the amendment would be a costly exercise in bureaucracy. However, one may compare it with what the Government intend to do. That is, first, regional offices of the NHS executive, then the

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local consortia, the regional education development group and all the rest of it, without the national overview for nursing.

I think that the Government are being extremely optimistic if they believe that they will reduce bureaucracy. Obviously, the information which the Minister gave about the policy guidelines and the criteria is welcome. She has not said how long is the longer term about which I asked. I understand that the Government wish to see how matters turn out before they can reach a decision on when the switch to the local consortia takes place.

There is some reassurance in what the Minister said, but I am not sure that we will not have to return to the problem. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Miller of Hendon: I beg to move that the House be now resumed. In moving the Motion, may I suggest that the Committee stage begin again not before 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Olympic Symbol etc. (Protection) Bill

7.31 p.m.

Lord Brabazon of Tara: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Brabazon of Tara.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Serota) in the Chair.]

Clause 1 agreed to.

Clause 2 [Creation]:

The Parliamentary Under-Secretary of State, Department of National Heritage (Viscount Astor) moved Amendment No. 1:


Page 1, line 21, leave out ("section") and insert ("sections").

The noble Viscount said: The amendment is consequential on the amendment in respect of the new clause to come after Clause 4. With the leave of the Committee, I shall speak to that amendment and the amendment to Clause 16 at the same time. I shall therefore speak to Amendments Nos. 2, 12, 14 and 15.

The Olympics association right is a very wide right since it applies to any use in the course of trade without the consent of the British Olympic Association. I believe that the Bill goes as far as it can in Clause 4 in identifying what I would call reasonable trade uses of a controlled representation and my noble friend Lord Brabazon of Tara will speak to Clause 4 in relation to

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his amendment. It reflects the interests of the BOA and the commitments made by the Government to the International Olympic Committee.

As I explained on Second Reading, however, concerns were expressed in another place about uses of a controlled representation by businesses in a way which might be technically in breach of the Olympics association right but do not affect the commercial interests of the BOA. I gave examples at Second Reading of companies which might choose, after the Bill is enacted and comes into force, to register themselves as, for example, Olympic Bus, Olympic Cars and Olympic Electronics.

The Secretary of State already has a power under Clause 14 to give directions to the BOA with regard to the exercise of the Olympics association right and where there is no threat to its commercial interests the BOA will be happy to consent to use. Nevertheless, the possibility of infringement would still require businesses formally to approach the BOA for consent, or the Secretary of State for a Clause 14 direction. It is anticipated that the administrative burden on the BOA and the Secretary of State could be great. The proposed amendments would enable the Secretary of State by order made by statutory instrument to provide that a specified category of uses of a controlled representation would not constitute an infringement of the Olympics association right.

If this Bill is enacted the Secretary of State, with the assistance of the BOA, will seek to identify areas where use of a controlled representation may properly be allowed without jeopardising the BOA's commercial interests. It is difficult to anticipate where the need may arise but the provision is broad enough to allow the Secretary of State to permit uses of a controlled representation: for example; for the purposes of new subsidiary companies of established companies; in the incorporation of a company under a name which was formerly its business name; for the purpose of a certain class of business—for example, florists, small restaurants; for specified trade uses for the purposes of an undertaking—for example, use in a campaign against drug taking in the Olympics.

My noble friend Lord Archer of Weston-super-Mare spoke on Second Reading with his usual eloquence about the importance of the Olympic symbol above all other sporting emblems. I entirely accept what he said. The commercial exploitation of the Olympic symbol by anyone other than the British Olympic Association is entirely unacceptable and it is already reflected on the face of the Bill. Any order made under the proposed new power will also distinguish, along the same lines, between permitted use of a protected word and the symbol.

There may be circumstances, however, where non-exploitational use of the symbol might well be appropriate. One example I referred to earlier might be in a campaign against drug taking in Olympic sports. Again, it might be appropriate to authorise limited use of the symbol by a disabled Olympics association with conditions as to its use and attribution.

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Also in this respect I have heard the Olympics association right correctly referred to as a "super trade mark" since the monopoly conferred by the legislation is not limited to goods and services. That is an accurate reflection of the significance of the emblem and commitments given to the International Olympic Committee. However, if companies find that the right affects incidental use of a protected word or symbol in their business relationships in ways which have not been anticipated in Clause 4(1) it might be appropriate to except such use from being an infringement of the Olympics association right. One instance of incidental use is already identified in Clause 4(13); that is, use for the purposes of judicial or parliamentary proceedings in which use might be of both the symbol and protected words.

Since the object of this clause is therefore to provide maximum flexibility in permitting the fair use of a controlled representation it would not be appropriate to limit the Secretary of State's power to protected words alone. Neither would it be appropriate for the clause to be narrower than Clause 14 since it is Clause 14 which this provision complements by providing the ability to put the subject matter of a direction on a general statutory footing if it is appropriate.

The amendment technically allows the Secretary of State to permit the use of the symbol but the Secretary of State could only do so where it would be reasonable within the spirit of the Act and the symbol will have greater protection than the words. I can assure the Committee in the strongest terms, therefore, that the Secretary of State has no intention of allowing the commercial exploitation of the symbol or any use of the symbol by anyone other than the British Olympic Association.

The amendments provide a safety net for fair and non-exploitational uses of a controlled representation. I beg to move.

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 2:


Page 1, line 21, after ("4") insert ("and (Power to prescribe further limits on effect)").

The noble Viscount said: I have just spoken to this amendment with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 agreed to.

Clause 4 [Limits on effect]:

Lord Brabazon of Tara moved Amendment No. 3:


Page 2, line 40, leave out ("is") and insert ("consists of use").

The noble Lord said: In moving this amendment, with the leave of the Committee, I should also like to speak to Amendments Nos. 4 to 11 inclusive, and Amendment No. 13. Before I move on to the amendments, I think it would be appropriate to put Clause 4 as a whole in the context of the Bill.

The Olympics association right is a very wide right which confers exclusive rights in relation to the use of the Olympic symbol, motto and protected words. Under Clause 3(1) a person infringes the Olympics association right if he uses, in the course of trade, a representation

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of the Olympic symbol, the Olympic motto or protected word, or a representation of something so similar to the Olympic symbol or the Olympic motto as to be likely to create in the public mind an association with it.

However, there will be cases where a person may have an existing or deserved right to use a controlled representation, or where it would be proper to allow the use of a controlled representation because the user is merely involved in factual reporting or because the use would not be to the commercial detriment of the proprietor. Clause 4 therefore sets out those circumstances where the use of a controlled representation in the course of trade will be permitted. Much of Clause 4 is self-explanatory; but there are a couple of matters that I wish to emphasise in relation to the clause.

First, noble Lords will note that all existing use of a controlled representation for the purposes of an undertaking, or as part of a business or company name, may continue. Provision for this is made in Clause 4 subsections (9) and (10) respectively. Secondly, Clause 4 subsections (4) and (5) apply only to representations of a protected word, and not to the Olympic symbol or motto. As my noble friend the Minister said, my noble friend Lord Archer of Western-Super-Mare expressed great concern over the unique significance of the Olympic symbol in world sport. I certainly agree with my noble friend. The commercial exploitation of the Olympic symbol in any form and by anyone other than the proprietor of the Olympics association right is entirely unacceptable, and it is reflected on the face of the Bill.

Subsections (4) and (5) raise some difficult points. I should like to dwell on these two subsections for a short while before moving on to the amendment to Clause 4(1). Clause 4(4) provides that the Olympics association right is not infringed where one of the protected words is used in a way which is not such as ordinarily to create an association with the Olympic Games or the Olympic movement or a quality ordinarily associated with the Olympic Games or Olympic movement. Such qualities may include speed, excellence or strength.

I wish to make it clear that most uses of a protected word will be in a way which creates an association with the Olympic Games or the Olympic movement. By definition, it is with the Olympic Games and the qualities associated with the Olympics that people normally connect the words "Olympic", "Olympian" and "Olympiad", their plurals and translations and nothing else.

For use of a protected word not to be associated with the Olympics or their qualities, a user would need to show a legitimate alternative explanation. Members of the Greek community, for example, may sometimes use a protected word to create an association with their or their forebears' homeland when opening a small business such as a restaurant or a grocery. It is certainly not the intention of the Bill that Olympic Airlines creates an association with the Olympic Games unless its activities were to stray into areas rightly regarded as those of the proprietor. However, I wish to make it clear

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to the House that a defence under Clause 4(4) to an infringement action should be available as the exception rather than the rule.

Clause 4(5) provides that,


    "In the case of a representation of a protected word, the Olympics association right is not infringed by use which creates an association between the Olympic games or the Olympic movement and any person or thing where the association fairly represents a connection between the two, provided the use is in accordance with honest practices in industrial or commercial matters".

An example of use which might be justified under this clause is an hotelier who advertises accommodation within five minutes' walk of an Olympic Games venue. This will also cover incidental reporting of anything to do with the Olympics in day-to-day trade.

The use would need to be a fair representation of an existing connection, however. The clause does not, for example, permit a manufacturer to claim that his products have been endorsed by the proprietor or the Olympic movement at large when they have not. Likewise, a widget supplier could not claim on the basis of a simple supply agreement with the proprietor that he is "the supplier of widgets to the British Olympic Association".

Further, the Clause 4(5) defence should be available only where the use is in accordance with honest practices in industrial or commercial matters. Among other things, this restricts what is known in the marketing profession as "ambush marketing". An example of this would be if the British Olympic Association officially endorses a sportswear manufacturer's products, and a rival manufacturer runs an advertising campaign using former Olympic champions or other images of the Olympic Games deliberately in order to counter the benefits of official endorsement. However it is dressed up, this is not honest commercial practice, and the person who undertakes such an advertising strategy will receive no succour from this Bill.

I turn now to the amendments. Clause 4(1) is one of the exceptions stressed in Clause 4 and provides where use of a controlled representation in circumstances which would otherwise infringe the Olympics association right is permissible when it is used in literary works, dramatic works, musical works, artistic works, sound recordings, films, broadcasts and cable programmes.

The Olympic Games are public events, just like the coronation of the Queen or the forthcoming VE Day commemorations. It would be quite unfair and totally impractical for the Bill to prevent broadcasters, journalists, photographers, artists and film-makers making reference to the Olympics without the consent of the proprietor although that is their trade. That would be censorship, and it would be unacceptable. That is why Clause 4(1) as drafted accepts the use in literary works, etc., provided the use in those works does not advertise or promote goods or services and is in accordance with honest commercial practice.

However, the Bill seeks to prevent the use of an artistic work which contains a controlled representation to sell other goods and services. It is not intended, for example, that a person could use a television broadcast,

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itself permitted, to advertise a product by reference to the Olympic Games, and it is not intended that a person could use an artistic work which contains a controlled representation as a design for goods such as T-shirts, sports bags and equipment. A close examination of the Bill throws doubt on whether the restriction on commercial use of a work to advertising or promotional activities covers the full range of practices by which a person who is determined to use a controlled representation might exploit a work commercially and against the spirit of the Bill.

As an example of how Clause 4(1) as currently drafted might be exploited through sharp commercial practice, it is useful to look at the artistic work exception. The definition of "artistic work" in the Copyright, Design and Patents Act 1988 is very wide. It covers among other things any graphic work or photograph, irrespective of quality. A design with the words "Olympic Yachting" and the Olympic symbols printed as part of a wider graphic design—say, involving an anchor and a rope—would be an artistic work. A user of the design would claim the Section 4(1) defence, and that would be available to him unless the design was also being used to promote goods or services as in Clause 4(1) (b).

Where there is uncertainty is whether sticking a design on a T-shirt could be said to promote that T-shirt. It is certainly the intention of the Bill that such exploitation should be prohibited; but it is possible that the courts might hold that the design on the T-shirt is what the T-shirt is bought for and it cannot be said to be there in any subsidiary capacity to promote the T-shirt. This is too important a matter to be left in any doubt.

It is proposed therefore to replace the current provision that use in a work is allowed so long as the purpose of the work is not the advertising or other promotion of goods or services, with a new, two-pronged provision which examines the use of a work in the course of trade in relation to other goods and services. Any of the actions illustrated in Clause 3(2) of the Bill as examples of what may be use in the course of trade might also constitute use in relation to goods or services if what is being used is a work. The addition, through Amendment No. 11, of a new subsection at page 4, line 43 of the Bill makes clear beyond doubt that the affixation of a work to goods is used in relation to goods.

The amendment to Clause 4(1) provides that the Olympics association right is not infringed by use of a controlled representation in artistic work, and so on, where the person using the representation in the work does not intend that work to be used in relation to goods or services in circumstances which would involve an infringement of the Olympics association right. This would allow the proprietor to enforce the Olympics association right to prevent the use of a work in relation to other goods and services before it is actually used where that work, for example in an advertising broadcast, has clearly been created with the intention of being used in the course of trade in relation to goods and services.

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The proposed Clause 4(1A) provides that any use of a work in relation to other goods and services is an infringement of the Olympics association right whatever its original purpose. Controlled representation may be used in relation to literary or artistic works, etc., which are to any extent about the Olympic Games or the Olympic movement under Clause 4(3), which covers, for example, trailers for television coverage at the Olympic Games or the promotion of books about the Olympic Games.

Together, the amendments have the effect of bringing into play some non-exploitative uses of works as an infringement of the Olympics association right. The honourable Member for Brent, East, gave an illustration in another place of a satirical cartoon about the games being used in a teeshirt design in a campaign against the games.

Amendment No. 10 provides at page 3, line 11 that the use of a controlled representation in a work which is to any extent about the Olympic Games or the Olympic movement—that would include the cartoon—should be allowed in relation to goods where the use of the work is not for the purposes of gain for any person or loss for another.

With the benefit of my amendments, and those which my noble friend the Minister moved, I submit that Clause 4 of the Bill is a good clause. It is fair to legitimate users of a controlled representation but firm in protecting the proprietor's commercial interests. I beg to move.


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