Abstract
This chapter will conclude the more specific consideration of the impact of special event commercial rights protection on traditional legal principles, by briefly examining the potential human rights implications of such laws. It will examine issues such as the impact of anti-ambushing laws on free speech and on constitutionally protected property rights and the freedom of trade. The discussion will focus attention on the urgent need for the legal fraternity to seriously consider the implications and legitimacy of mega-event commercial monopolies in the context of the global political economy and, specifically, developmental states such as South Africa, India and Brazil, who are more and more frequently bidding for and successfully acquiring the rights to host mega-events, and then called upon to pass laws which undermine fundamental principles of their hard-fought constitutional democracies.
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Notes
- 1.
The ‘pith’ of the applicant (on appeal)’s freedom of expression (and parody) defence to a trademark dilution claim, as expressed by Moseneke J in the South African Constitutional Court judgment in Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International and Another (CCT42/04) [2005] ZACC 7; 2006 (1) SA 144 (CC); 2005 (8) BCLR 743 (CC) (27 May 2005), at par. 13 of the judgment.
- 2.
Ellis et al. 2011, p. 304.
- 3.
Title of an article by Retsky, M L in Marketing News (30)14 (1996) 14.
- 4.
See the report of March 2010, which calls on FIFA and the IOC (and host governments) to ensure that mega-events such as the football World Cup and the Olympic Games do not lead to the displacement of the poor, through forced evictions, criminalisation of homeless persons and informal activities, and the dismantling of informal settlements—see the report entitled ‘Olympics and World Cup soccer must take up cause of right to housing—UN expert’, 9 March 2010, available on the web site of the UN News Centre at www.un.org [accessed 20 March 2010].
- 5.
See the report dated 28 April 2011 available online at the time of writing at http://www.gringos.com/brazil/un-special-rapporteur-calls-for-halt-to-olympic-and-world-cup-slum-clearances-in-brazil.html.
- 6.
See the interview, posted on 1 August 2011, available online at the time of writing at http://1mundoreal.org/residents-being-removed-for-world-cup.
- 7.
- 8.
Murray, K ‘resisting the 2010 Olympics: Learning within the praxis of activism’ 8th World Congress on Participatory Action Research and Action learning, 6–9 September 2010—available online at http://wc2010.alara.net.au/Formatted%20Papers/2.2.5.ICD.1.Paper.pdf.
- 9.
Ritchie and Hall 2000.
- 10.
Constitution of the Republic of South Africa, 1996.
- 11.
Constitution of the Republic of South Africa sec. 7(1).
- 12.
As contained in Chap. 2 of the Constitution. For detailed discussion of the rights contained in the Bill of Rights and case law regarding its interpretation and application, the reader is referred to more specialised texts on the subject—see Currie and de Waal 2005, Cheadle et al. 2005, Devenish 2005.
- 13.
Constitution of the Republic of South Africa sections 8(1) and (2). Section 8 of the Bill of Rights provides as follows:
8(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
8(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
8(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court
-
(a)
in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and
-
(b)
may develop rules of the common law to limit the right, provided that the limitation is in accordance with Section 36(1) [the limitation clause contained in the Bill of Rights] … .
-
(a)
- 14.
Section 36, the limitations clause, provides as follows:
S 36(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including:
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
- 15.
Section 39(2) of the Bill of Rights provides a vehicle for the ‘indirect’ application of the Bill of Rights to disputes between private individuals or natural and juristic persons (e.g. contractual disputes), and states as follows:
When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights …’[Emphasis provided].
- 16.
Constitution of the Republic of South Africa sec. 39(1).
- 17.
Virginia State Bd., 425 U.S. at 762, 96 S.Ct. 1817 (quoting Pittsburgh Press Co. v. Pittsburgh Commn. on Human Relations 413 US 376, 385).
- 18.
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. (1980) at 561.
- 19.
Bolger v. Youngs Drug Products Corp. 463 US 60, 66–67.
- 20.
See US Olympic Committee v American Media, Inc 156 F.Supp.2d 1200 (2001) 1207.
- 21.
ICC Development (International) Ltd v Arvee Enterprises & Philips 2003 (26) PTC 245 (Del).
- 22.
Vassallo et al. 2005, p. 1341.
- 23.
See Lemley and McKenna 2010, p. 443–445.
- 24.
Copy available online at the time of writing at http://www.oewd.org/media/docs/03-31-11_Ambush%20Marketing%20Plan.pdf.
- 25.
McKelvey and Grady 2008, p. 568.
- 26.
See the consultation document dealing with sections 9 and 10 of the regulations, available online at the time of writing at http://www.culture.gov.uk/images/publications/ConDoc_Regulations_on_Advertising_and_Trading_London_2012-section9-10.pdf.
- 27.
- 28.
From Frontier Economics 2007, p. 95.
- 29.
See the news clip, published 25 March 2011, available online at the time of writing at http://tvnz.co.nz/national-news/rwc-bosses-issue-yellow-card-warning-4087581/video#.
- 30.
Coombe 1993.
- 31.
See Symons, C & Warren, I ‘”David v. Goliath”: The Gay Games, the Olympics and the Ownership of Language’ Entertainment and Sports Law Journal (April 2006), text available online at the time of writing at http://www.bl.uk/sportandsociety/exploresocsci/sportsoc/mega/articles/clicklogo.pdf.
- 32.
Scassa, T 2011, p. 366.
- 33.
- 34.
Which provides as follows:
‘Section 16. Freedom of expression:
-
1
Everyone has the right to freedom of expression, which includes
-
a.
freedom of the press and other media;
-
b.
freedom to receive or impart information or ideas;
-
c.
freedom of artistic creativity; and
-
d.
academic freedom and freedom of scientific research.
-
a.
-
2
The right in subsection (1) does not extend to
-
a.
propaganda for war;
-
b.
incitement of imminent violence; or
-
a.
advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.’
-
1
- 35.
Which provides as follows:
Article 10—Freedom of expression:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
- 36.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
- 37.
Currie and de Waal 2005, pp. 379–380.
- 38.
See Irwin Toy Ltd v Quebec (A-G) (1989) 58 DLR (4th) 577.
- 39.
See Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, Inc 96 S. Ct. 1817 (1976); Bates v State Bar of Arizona 433 US 350 (1978); Bigelow v Virginia 421 US 809 (1975); Central Hudson Gas v Public Services Commission 447 US 557 (1979); Weinberg 1982
- 40.
United States v. Edge Broadcasting Co., 509 U.S. 418 (1993).
- 41.
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. (1980) 566.
- 42.
Cohen, H Freedom of Speech and Press: Exceptions to the First Amendment Congressional Research Service Report for Congress, 16 October 2009, at 8—available online at the time of writing at http://www.fas.org/sgp/crs/misc/95-815.pdf.
- 43.
See Sorrell v IMS Health, Inc No. 10-779 (2011), where Justice Kennedy in the US Supreme Court held that there is no exception to the rule that government may not restrict speech based on content in the realm of commercial speech, and while the speech at issue in this case “results from an economic motive, so too does a great deal of vital expression.” Deborah La Fetra has argued for the abolishment of the commercial speech doctrine:
‘[C]orporations and other business interests play a vital role in the American political economy, thus imbuing corporate speech with inherent value in our democratic society. Rather than treating such speech as a hostile intruder in public debate, it should be embraced as presenting a point of view that may well otherwise remain unexpressed…. [T]he line between commercial and noncommercial speech…is so blurred as to be indistinguishable. With greater frequency and subtlety, new technologies and innovative marketing strategies introduce corporate profit-motive into what otherwise would be fully-protected speech. The current commercial speech doctrine cannot predictably resolve disputes resulting from these new modes of expression. La Fetra 2004.
- 44.
Irwin Toy Ltd v Quebec (A-G) (1989) 58 DLR (4th) 577.
- 45.
Tata Press Ltd v Mahangar Telephone Nigam Ltd AIR 1995 SC 2438; Hindustan Times v State of UP AIR 2003 SC 250; Sakal Papers (P) Ltd v Union of India AIR 1962 SC 305.
- 46.
See Gassy-Wright, O V ‘Commercial Speech in the United States and Europe’ (2005). LLM Theses and Essays. Paper 13. http://digitalcommons.law.uga.edu/stu_llm/13. The US Supreme Court, in the ‘Gay Olympics’ case referred to elsewhere in this chapter, observed that ‘Commercial speech receives a limited form of First Amendment protection’, relying on Posadas de Puerto Rico Assoc. v. Tourism Company of Puerto Rico, 478 U.S. 328 (1986) and Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557 (1980).
- 47.
See Currie and de Waal 2005, p. 379. In Laugh It Off Promotions CC v South African Breweries International (Finance) B.V. t/a Sabmark International & Another 2006 (1) SA 144 (CC) Moseneke J declared the following (in par 62 of the judgment) regarding the distinction between ‘normal’ speech and commercial speech in the context of a constitutional freedom of expression defence to parodic messages on t-shirts which incorporated adaptations of well-known trade marks (in casu, a well-known beer brand), with reference to an argument advanced by an amicus curiae in the case:
The amicus however draws our attention to the clear duality of the roles of the T-shirts—to sell and to make a social statement. It is the expressive role, the amicus argues, which engages the constitutional protection and is worthy of its shield. To limit valuable communication to non-commercial enterprises would further marginalise alternative and competing voices in society. In this way voices of the best resourced would tend to prevail. But also it is important to keep in mind the purpose for which the marks have been appropriated. What is being sold is not another beer or other product under the guise or on the back of the registered marks. What is being sold is rather an abstract brand criticism. T-shirts are not much more than the medium of choice.
- 48.
See the report available online at the time of writing at http://www.stuff.co.nz/auckland/local-news/rwc-in-auckland/5561402/Squads-to-check-on-ambush-adverts.
- 49.
See again Mouritz 2008.
- 50.
C.B.C. Distribution and Marketing, Inc., v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007).
- 51.
The authors of the country report on the United States prepared for the Working Committee of the International Association for the Protection of Intellectual property (AIPPI), Project Q210 (‘The protection of major sports events and associated commercial activities through trademarks and other IPR’; reports compiled for purposes of a draft resolution to be submitted to the AIPPI Exco meeting in Buenos Aires, October 2009)—available online at the time of writing at https://www.aippi.org/download/commitees/210/GR210usa.pdf.
- 52.
Such advertisements are not constitutionally protected in the USA and India, for example—see the discussion by Scaria 2008, pp. 114–115. In the US context the following has been observed:
[I]f the purpose of the Supreme Court’s recognition of First Amendment protection for advertising is to further the dissemination of information, then it would not make sense to protect, false, misleading, or deceptive advertisements. But if the expression/advertisement is about a lawful activity and is not misleading, it is thought to deserve First Amendment protection… When the content of advertising crosses the line and becomes deceptive, it is the responsibility of the regulating body to minimize the resultant unfair competitive effects.—Wright 1999, 491.
- 53.
Scaria 2008, p. 115.
- 54.
Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir.1989).
- 55.
Ibid.
- 56.
As pointed out previously, ‘intrusion ambushes’ may include a wide variety of activities which may otherwise not constitute legally or ethically objectionable conduct. An example is the marketing practice of running a promotional campaign in which tickets to an event are given away as prizes, a practice which has in recent years fell foul of anti-ambush marketing laws in a number of jurisdictions. This practice has increasingly been addressed by means of e.g. contract law (i.e. through the means of prohibitions contained on the tickets) or by means of specific legislation. In respect of the 2010 FIFA World Cup South Africa, the Minister of Trade & Industry published regulations prohibiting the resale and unauthorised promotion of tickets to the event (Government Notice 383 in Government Gazette 32123 of 14 April 2009—such regulations to serve as additional regulations in terms of section 2A of the 2010 FIFA World Cup South Africa Special Measures Act), which provide as follows:
(1) No person shall, without the written authority of FIFA:
-
(a)
Sell or otherwise dispose of a 2010 FIFA World Cup South Africa ticket, or any right pertaining to such a ticket, to another person, for commercial purposes;
-
(b)
Use a 2010 FIFA World Cup South Africa ticket for advertising, sales or promotional purposes, or as part of a hospitality or travel package, or make it available or advertise it for any such purpose;
-
(c)
Use a ticket transferred or acquired in violation of paragraphs (a) or (b) above.
(2) Any person convicted of an offence in terms of section (1), shall be liable to a fine not exceeding R 15 000.00 for each article to which the offence relates, or to imprisonment for a period not exceeding five years, or to both such fine and imprisonment.
-
(a)
- 57.
Ibid.
- 58.
See the discussion of FIFA’s legal challenges to ambush marketing in respect of the 2010 World Cup in Sect. 4.4.5 of Chap. 4. Compare also the following sentiment expressed in respect of the Canadian ambush marketing legislation in respect of the 2010 Vancouver Winter Games (by Geist, M ‘Bill C-47 not in the spirit of the Olympics’, Toronto Star 19 March 2007):
[S]pecial interest legislation, particularly legislation blatantly designed to protect a select group of corporate interests at the expense of free speech, should have no place in a government focused on trust and accountability.
- 59.
See, for example, section 12 of the Major Events Management Act, 2007.
- 60.
This document is at the time of writing available as a download on the London 2012 website at http://www.london2012.com/documents/oda-publications/no-marketing-rights-suppliers-protocol-dec-2007.pdf.
- 61.
The Protocol document at 3.
- 62.
Ibid.
- 63.
Grady et al. 2010, p. 150.
- 64.
At par. 15 of the judgment.
- 65.
Moseneke J in Laugh it Off supra at par. 17.
- 66.
Ellis et al. 2011, pp. 303–304.
- 67.
[1986] 1 S.C.R. 103 (at par. 70).
- 68.
Ellis et al. 2011, p. 304, with reference to R v Nova Scotia Pharmaceutical Society [1992] 2 S.C.R. 606.
- 69.
Ellis et al. 2011, p. 304.
- 70.
As opposed to the position under e.g. the Major Events Management Act, 2007 in New Zealand, which prohibits a ‘representation of association’ regarding a protected event—see the discussion in Sect. 4.4.4 in Chap. 4.
- 71.
See the discussion in Sect. 4.4.5 of Chap. 4.
- 72.
See par. 10 of Msimeki J’s judgment:
‘It has been submitted on behalf of [Metcash] that section 15A [of the Merchandise Marks Act] has to tazke cognisance of [Metcash’s] rights to freedom of expression and “to use its products and trade marks in the manner and get up that it chooses”. This argument, as is correctly submitted by [FIFA], loses sight of the fact that the interests of the general public must still be contended with. This … simply means that section 36 of the Constitution would allow and justify the limitation of [Metcash’s] rights to freedom of expression or to intellectual property if their use would deceive or confuse the public and end up jeopardising an event such as the soccer world cup and at the same time prejudicing the sponsors and the licensees of the events. There is again, in my view, merit in this submission.’
It is submitted, with respect, that this is a rather shockingly superficial application of the limitations exercise in section 36 of the Bill of Rights, and that Metcash’s freedom of expression challenge (see par. 12 of the order, where the learned judge states that it had been submitted on behalf of Metcash that section 15A has constitutional implications, and that ‘[t]he submission, in my view, is correct’) appears to have been rejected on the basis of assumptions regarding facts and evidence which was apparently not before the court. It is submitted that deception of the public, potential ‘jeopardising’ of the World Cup as well as prejudice to sponsors and licensees were not proven.
- 73.
Harvey, S ‘Rugby World Cup advertising ambush expected’ Sunday Star Times, 18 July 2011—available online at http://www.cmo.com/advertising/rugby-world-cup-advertising-ambush-expected.
- 74.
Ellis et al. 2011, p. 304.
- 75.
See the report entitled ‘All Blacks impose social media blackout for the World Cup, 17 June 2011, available online at the time of writing at http://news.bbc.co.uk/sport2/hi/rugby_union/13808100.stm.
- 76.
See Bollier 2005, p. 171.
- 77.
Ibid. 171–172.
- 78.
See the Canberra Times report available online at the time of writing at http://www.canberratimes.com.au/news/national/national/sport/publishers-tackle-rugby-world-cup-over-copyright/2269922.aspx.
- 79.
Dick, T ‘World Cup tackled over restrictions on coverage’ Canberra Times, 25 August 2011—available online at the time of writing at http://www.canberratimes.com.au/news/national/national/general/world-cup-tackled-over-restrictions-on-coverage/2269887.aspx.
- 80.
- 81.
Google translation from the original Portuguese text: Não. O Brasil firmou soberanamente as garantias prestadas e nenhuma modificação normativa proposta ofende a Constituição Federal ou a ordem jurídica de nosso país.
- 82.
Although it should be noted that developments in some jurisdictions in respect of e.g. database rights have apparently opened the door to claims for protection of facts in terms of copyright laws—see the critical discussion by Bollier 2005, p. 160 et seq. Ironically, in the context of this book, a major battleground in this respect has been sports scores and statistics (see also the recent cases in the USA regarding fantasy leagues and access to player names and statistics—compare the litigation engaged in by Major League Baseball and the NFL Players’ Association).
Hewitt 2005 discusses the failed lobby in England by the Association for the Protection of Copyright in Sports for the recognition of copyright in sports events similar to other types of ‘works’ under the applicable copyright legislation (e.g. literary, artistic and musical works), which was rejected in the 1952 Gregory Report (a report of the Committee on Copyright Protection which led to the Copyright Act of 1965).
- 83.
In Sect. 10.4.2.
- 84.
Sachs J in the Laugh it Off case supra, at par. 105–106.
- 85.
Ellis et al. 2011, p. 305.
- 86.
See the discussion in Sect. 4.4.7 of Chap. 4.
- 87.
Scassa 2011, p. 361.
- 88.
Sydney Organising Committee for the Olympic Games v Pam Clarke [1998] FCA 792.
- 89.
Longdin 2009, p. 736.
- 90.
Ibid.
- 91.
Chartered Institute of Marketing Shape the Agenda Issue 14 (2008) 7.
- 92.
See the short press release of the British Columbia Civil Liberties Association available online at the time of writing at http://www.bccla.org/pressreleases/10Activist_lawsuit.html.
- 93.
Sliffman 2012—I wish to sincerely thank the author for kindly providing me with access to this document prior to its publication.
- 94.
447 U.S. 557 (1980).
- 95.
Sliffman 2012.
- 96.
With reference to Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981); City and County of S.F. v. Eller Outdoor Adver., 192 Cal. App. 3d 643 (1987).
- 97.
Sliffman 2012.
- 98.
With reference to Atlanta Journal and Constitution v. City of Atlanta Department of Aviation 322 F.3d 1298 (11th Cir. 2003); Desert Outdoor Advertising, Inc. v. City of Moreno Valley 103 F.3d 814 (9th Cir. 1996).
- 99.
Sliffman 2012.
- 100.
Ibid.
- 101.
Ibid.
- 102.
- 103.
The consultation document supra at 91 et seq.
- 104.
Ibid.
- 105.
Ibid. at 92.
- 106.
Ibid. at 93.
- 107.
Which will be further examined in Chap. 8.
- 108.
Roche 2000, p. 9.
- 109.
Although the IOC does not appear to be overly bothered by such criticisms—compare the expected extension of the McDonald’s TOP sponsorship of the Olympic Games through 2020, as reported in Mickle, T ‘McDonald’s close to TOP extension’, 17 October 2011—available online at http://www.sportsbusinessdaily.com/Journal/Issues/2011/10/17/Olympics/McD-TOP.aspx.
- 110.
As referred to by Symons, C and Warren, I “David v. Goliath”: The Gay Games, the Olympics and the Ownership of Language’ Entertainment and Sports Law Journal (April 2006), text available online at the time of writing at http://www.bl.uk/sportandsociety/exploresocsci/sportsoc/mega/articles/clicklogo.pdf.
- 111.
‘Roving teams shield Olympic brand’, 15 September 2009—available online at http://www.cbc.ca/news/canada/british-columbia/story/2009/09/15/bc-olympic-advertising-protest-teams.html.
- 112.
Ibid.
- 113.
Schlossberg 1996, p. 176.
- 114.
Grady et al. 2010, p. 154.
- 115.
Ibid. 151.
- 116.
Cooper Dreyfuss 1996, p. 140.
- 117.
See the report by Patrick Bond ‘FIFA forbids free speech at World Cup fan fest’, 9–11 July 2010—available online at http://www.counterpunch.org/bond07092010.html.
- 118.
For an (as always) eloquent discussion of the meaning of parody, and its interaction with the law, see the judgment of Sachs J in the Laugh It Off case supra (especially from par 76 et seq).
- 119.
Kulula.com marketing manager Nadine Damen, as quoted in the article by Dardagan, C ‘Kulula flies into FIFA flak’, 19 March 2010—available obline at www.iol.co.za [accessed 19 March 2010].
- 120.
See Campbell v Acuff-Rose Music, Inc 510 US 569 (1994), and the discussion of this case in Vaidhyanathan 2003, pp. 146–148.
- 121.
See the Laugh It Off case supra (and, in respect of a parody defence to trade mark infringement in the context of the constitutional freedom of expression guarantee, specifically the judgment in the Constitutional Court by Sachs J).
- 122.
Vaidhyanathan 2003, p. 187.
- 123.
For example, in 2006 the organisation admonished a local businessman who had registered five 2010 World Cup-related.co.za domains for an online travel and accommodation reservation, booking and information service (see the article by Glazier, D ‘FIFA threatens World Cup domain owner’, 5 October 2006 [available on the web site of http://www.itweb.co.za—accessed 8 April 2009)]. It appeared at the time that there was a lack of clarity regarding the legal position, as it appeared that FIFA’s name and brand were not used, although FIFA’s legal representatives were of the opinion that the domains were in contravention of the ambush marketing provisions of Section 15A of the Merchandise Marks Act, in light of the ‘protected event’ status of the 2010 World Cup. The eventual outcome of this dispute is unknown to the author at the time of writing.
- 124.
Such as that found in Section 16 of the Olympic Symbol etc. (Protection) Act 1995 (and extended in Para 10(1)(h) of Schedule 4 of the London Olympic and Paralympic Games Act, 2006) in the UK—see discussion in Chap. 4.
- 125.
Although it should be noted, of course, that the fact that s 15A(2) does not require deception or confusion of the public or a representation of association with an event would make the use of a notice disclaiming such an association irrelevant for purposes of determining contravention of the provision.
- 126.
According to the ad, kulula offered Mr. Blatter a free flight ‘if he needs to be anywhere in the country in the most convenient way possible’, provided he e-mails kulula at ImSeppBlatter@kulula.com.
- 127.
See the article by Moerdyk, C ‘Kulula is outwitting FIFA at every turn’ (available at http://www.bizcommunity.com/Article/196/147/45942.html—accessed on 9 April 2010).
- 128.
Jon Heshka, writing in ‘Rules and Rogues’, Marketing Magazine, 1 February 2010, 37.
- 129.
Lines and Heshka 2010.
- 130.
‘Prohibition of the Use of the Moses Mabhida Stadium and other Stadiums Intellectual Property Rights’, Interim Notice 396 of 2010, Government Gazette No. 33197 (17 May 2010).
- 131.
Compare the definition of an ‘artistic work’ in the South African Copyright Act 98 of 1978, which includes ‘works of architecture, being either buildings or models of buildings’.
- 132.
Laugh It Off Promotions CC v South African Breweries International (Finance) B.V. t/a Sabmark International & Another 2006 (1) SA 144 (CC).
- 133.
At par 48 of the judgment.
- 134.
See Frontier Economics 2007, p. 96.
- 135.
See also Scassa 2011, p. 367.
- 136.
The Section 22 right is only available to South African citizens (compare the wording of the section, and the Constitutional Court’s finding in Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 (2nd Certification decision) 1997 (2) SA 97 (CC) that the right of occupational choice could not be considered a universally accepted human right—see Currie and de Waal 2005, p. 489).
- 137.
Section 26(1) of the Interim Constitution (Act 200 of 1993) provided that ‘[e]very person shall have the right freely to engage in economic activity and to pursue a livelihood anywhere in the national territory’. See Currie and de Waal 2005, p. 484 et seq.
- 138.
See Lagrange in Cheadle et al. 2005, Ch 17-1 note 2; Magna Alloys & Research (SA) (Pty) Ltd v Ellis 1984 4 SA 874 (A); Sunshine Records (Pty) Ltd v Frohling 1990 (4) SA 782 (A).
- 139.
Atlas Organic Fertilizers v Pikkewyn Ghwano & Others 1981 (2) SA 173 (T) at 192F-193E, as quoted in Cheadle et al. 2005, Ch 17-1 note 2.
- 140.
E.g. see Patz v Green & Co. 1907 TS 427 at 436-7; Matthews v Young 1922 AD 492.
- 141.
Cheadle et al. 2005, Ch 17-1 note 2.
- 142.
In S v Lawrence; S v Negal; S v Solberg 1997 (10) BCLR 1348 (CC).
- 143.
Ibid, at par. 33 of the judgment.
- 144.
Cheadle et al. 2005, Ch 17-4.
- 145.
Coetzee v Comitis and Others 2001 (1) SA 1254 (C), at par. 27 of the judgment.
- 146.
See Cheadle et al. 2005, Ch 17-4.
- 147.
Cheadle et al. 2005, Ch 17-5.
- 148.
See Devenish 2005, p. 139.
- 149.
Ibid.
- 150.
See Cheadle et al. 2005, Ch 17-1 note 2.
- 151.
Kommers The Constitutional Jurisprudence of the Federal Republic of Germany 1997 at 287-8, as quoted in Cheadle et al. 2005, Ch 17-10 (note 38).
- 152.
Ibid.
- 153.
See Sect. 4.4.5 of Chap. 4.
- 154.
By Dr. Owen Dean, partner of Spoor & Fisher (one of the large intellectual property law firms representing FIFA in South Africa), writing in Dean, O ‘FIFA scores opening goal’ Without Prejudice May 2009 pp. 4–5.
- 155.
Ibid.
- 156.
The legislation that prohibits association ambushes—see discussion in Sect. 4.4.5 of Chap. 4.
- 157.
See Johnson 2007, p. 141 note 97.
- 158.
It appears from the rather sparse order in the FIFA v Metcash matter (see discussion in Sect. 4.4.5 of Chap. 4) that Msimeki J in the North Gauteng High Court found in favour of this argument by FIFA’s legal team.
- 159.
Pierre de Vos, writing at http://constitutionallyspeaking.co.za/on-the-fifa-world-cup-by-laws/ (posted 17 June 2010).
- 160.
Published in March 2009, in terms of the Municipal Systems Act 32 of 2000. Host cities are in terms of the Bid guarantees and following selection as host city required to pass such By-laws (which, to this author’s knowledge, are based on a standard template drafted or commissioned by FIFA). This is explained in the preamble to the Durban By-laws:
[T]he eThekwini Municipality … has assumed certain obligations with regard to the Competition and in particular, has agreed to ensure that appropriate by-laws are passed to enable the efficient running of the Competition. In this instance, the eThekwini Municipality is required to ensure that appropriate by-laws in the areas listed below are promulgated and implemented, and become effective for the Term to enable an orderly and efficient staging and hosting of the Competition: Advertising; Controlled Access; Public Open Spaces and City Beautification; Public Roads and Traffic Guidance; as well as Street Trading.
- 161.
Par. 2.1.1.2 of the By-laws.
- 162.
As defined in par. 1.1.21 of the By-laws. Controlled Access Sites include stadia, official event locations, official training sites, team hotels, official hotels for the FIFA delegation, FIFA Fan Parks, and any other area so designated or demarcated by the Municipality, and including private property.
- 163.
Par. 3.5 of the By-laws.
- 164.
- 165.
Par. 4.1.1.
- 166.
This is defined in par. 1.1.62 of the By-laws.
- 167.
Par. 4.6.
- 168.
Par. 4.2.
- 169.
‘Street trader’ is defined (in par. 1.1.74) as ‘a person selling goods’, and ‘street trading’ (in par. 1.1.75) as ‘the selling of any goods by a street trader’.
- 170.
See Chap. 6 of the By-laws.
- 171.
For example, par. 1.1.18 of the definitions defines ‘Competition’ as including the 2010 FIFA World Cup as well as the 2009 Confederations Cup, which was not held in Durban. Another example is the word ‘Culture’, which is exhaustively defined in par. 1.1.22, even though the word does not appear anywhere in the By-laws. Also, as for over-inclusive drafting, see the definition of ‘sign’ as per par. 1.1.70.
- 172.
Government Gazette No. 32878 Vol. 535 (18 January 2010).
- 173.
See the discussion by Rob Rose in Schulz-Herzenberg 2010, pp. 101–108.
- 174.
Ibid.
- 175.
Merchandise Marks Act Section 15A(1)(b).
- 176.
Longdin 2009, pp. 737–738.
- 177.
‘Article 1 to the First Protocol to the ECHR (“A1P1”) protects a person’s “possessions” from unjustified appropriation or interference by the State. The benefit of a licence, permit, certificate or consent (a “licence”) to carry on a profitable activity can amount to a “possession” for A1P1 purposes. The Regulations will apply despite any licence granted before or after the Regulations come into force and will restrict a person’s ability to engage in advertising activity and trading in accordance with an existing licence (in the small areas where the Regulations apply, during the Games period). Accordingly, the Regulations will arguably interfere with the A1P1 rights of current licensees.’—see http://www.culture.gov.uk/images/publications/ConDoc_Regulations_on_Advertising_and_Trading_London_2012-section9-10.pdf.
- 178.
‘Further, the Regulations will limit the uses to which land and other property (again, within the small areas where the Regulations apply) may be put during the Games period. They will prevent, for example, a land owner from using his or her land (or allowing his or her land to be used) for advertising or trading activities. This may also amount to an interference with land or other property owners’ A1P1 rights.’—see http://www.culture.gov.uk/images/publications/ConDoc_Regulations_on_Advertising_and_Trading_London_2012-section9-10.pdf.
- 179.
- 180.
- 181.
Application no. 7151/75; 7152/75, judgment 23 September 1982.
- 182.
As opposed to instances of the deprivation (or ‘taking’) of IP rights by the state—see, for example, discussion in the American context of this last in Price 2003, p. 150 et seq.
- 183.
As recognised as follows in the UK government’s justification of the London Olympics advertising and street trading regulations (available at the time of writing at http://www.culture.gov.uk/images/publications/ConDoc_Regulations_on_Advertising_and_Trading_London_2012-section9-10.pdf):
[A]n interference with possessions will be justified under [Article 1 Protocol 1 of the ECHR] where it is “lawful” (that is, imposed by sufficiently accessible, precise and foreseeable law), where it pursues a legitimate aim which is in the general interest, and where it is proportionate to that aim (that is, it strikes a “fair balance” between the general interests of the community and the individual’s fundamental rights).
- 184.
“Property” for purposes of s 25 should therefore be seen as those resources that are generally taken to constitute a person’s wealth, and that are recognized and protected by law. Such resources are legally protected by private law rights—real rights in the case of physical resources, contractual rights in the case of performances, and intellectual property rights in the case of intellectual property … Should an individual’s possession or exercise of any of these rights be interfered with arbitrarily or taken over without compensation, s 25 will be available to protect that individual.’ Currie and de Waal 2005, pp. 539–540.
- 185.
Mkontwana v Nelson Mandela Metropolitan Municipality 2005 (2) BCLR 150 (CC) at par. 32 (per Yacoob J); see also First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Services 2002 (4) SA 768 (CC).
- 186.
Currie and de Waal 2005, p. 541 note 35.
- 187.
Currie and de Waal 2005, p. 534–535
- 188.
Ibid. at 545; First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Services 2002 (4) SA 768 (CC) at par. 65.
- 189.
See the blog posting by Owen Dean on 13 October 2009 on the afro-ip blogspot (available at http://afro-ip.blogspot.com—accessed on 9 April 2010).
- 190.
See Mnguni, H ‘An industry “bullied” by FIFA’ News24, 26 March 2010—available online at the time of writing at http://www.news24.com/SouthAfrica/News/Ad-industry-bullied-by-FIFA-20100319.
- 191.
In re Certification of the Constitution of the Republic of South Africa 1996 1996 (4) SA 744 (CC) at 799.
- 192.
Laugh It Off Promotions CC v South African Breweries International (Finance) B.V. t/a Sabmark International & Another 2006 (1) SA 144 (CC). See Dean 2006, p. 1-2A note 3 (and the authority cited there).
- 193.
From the UK government’s ‘Regulations on Advertising Activity and Trading around London 2012’ document relating to exceptions, at p 92, as available online at the time of writing at http://www.culture.gov.uk/images/publications/ConDoc_Regulations_on_Advertising_and_Trading_London_2012-section9-10.pdf.
- 194.
Ibid. 93.
- 195.
Ibid.
- 196.
Section 18.
- 197.
See, for example, Ellis et al. 2011, p. 304:
[A] consequence of translating ambush marketing into a legal issue is that the legislative provisions inevitably set the boundaries of legitimate and illegitimate conducts. In other words, while in a context where there is no right of association, there may be debates about the ethics of certain forms of activity labelled as ambush marketing, in a system where there is a law that creates a right of association, marketing campaigns can be evaluated in terms of whether they fall foul of the law or not. In such a context, the approach of ambushers becomes one of the (sic) seeking legal advice on how to conduct an advertising campaign that will exploit any limitations or loopholes in the law.
- 198.
As, for example, entrenched in section 9 of the South African Bill of Rights.
- 199.
IRB Rugby World Cup 2011 Venue Regulations and Prohibited Items List, available online at the time of writing at http://tickets.rugbyworldcup.com/pdf/RWC2011VenueRegulations.pdf.
- 200.
Ibid.
- 201.
The Lei Geral de Copa provides, in Article 19, for the criminalisation of ‘intrusion ambushing’ (defined as the act of exposing ‘trademarks, businesses, establishments, products, services or to practice any promotional activities not authorised by FIFA or by a person indicated by FIFA, attracting, by any means, public attention in the Official Places of the Events, with the objective of obtaining economic or advertising advantage’), which would carry a penalty of 3 months to a year imprisonment, or a fine. My thanks to Felipe Dannemann Lundgren for kindly providing a translation of this provision from the Portuguese text of the Bill.
- 202.
Compare section 19 of the London Olympic and Paralympic Games Act, 2006, and section 24 of the Glasgow Commonwealth Games Act, 2008.
- 203.
Corbett and Van Roy 2010, p. 361.
- 204.
Ellis et al. 2011, p. 306.
- 205.
See the document relating to exceptions (referred to earlier), at p 92, as available online at the time of writing at http://www.culture.gov.uk/images/publications/ConDoc_Regulations_on_Advertising_and_Trading_London_2012-section9-10.pdf.
- 206.
Ibid. At 95.
- 207.
Scassa 2011, p. 367.
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Louw, A.M. (2012). Mega-Event Commercial Rights Protection and Human Rights. In: Ambush Marketing & the Mega-Event Monopoly. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-864-4_7
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