ACBDA: Order Prevents ‘Ambush Marketing’

The America’s Cup ‘Restricted Marketing Order’ is to “prevent ambush marketing and unauthorised commercial exploitation of the event by companies” and “prohibits attempts to position branding, signage and advertising in any locations where it will be in view of television cameras or spectator crowds, including aerial footage, as the races are broadcast from Bermuda.”

This statement is from the ACBDA, who said, “A legal notice recently published in the official gazette is designed to protect the rights of official commercial partners and sponsors of the 35th America’s Cup, both in Bermuda and on a television feed that will reach a global audience of millions of viewers, while still obtaining maximum benefit for Bermudians.

“The official government notice, called a Restricted Marketing Order, falls under the America’s Cup Act 2015 and was first enacted in Hamilton when Bermuda hosted the Louis Vuitton America’s Cup World Series in October 2015.

“The primary reason for the order is to prevent ambush marketing and unauthorised commercial exploitation of the event by companies that have no official association with the America’s Cup, yet seek prominence during the events for their businesses.

“This prohibits attempts to position branding, signage and advertising in any locations where it will be in view of television cameras or spectator crowds, including aerial footage, as the races are broadcast from Bermuda.

“Ambush marketing is where companies unfairly advertise their products and services at the expense of official commercial partners and sponsors, who have paid for the official rights to promote their businesses in association with the America’s Cup.

“Another part of the official notice, and for similar reasons, is a restriction on street trading by new operators in the Restricted Marketing area without the appropriate permission.

“This again is intended to protect local businesses who have succeeded in an official tender process to be an official supplier or service provider to the America’s Cup in these areas. It also helps to prevent the sale of counterfeit merchandise and ambush marketing in these areas.

“It is important to note that the Restricted Marketing Order has been designed so it does not impact on existing companies who are acting in the normal course of their business where there is no attempt to associate with the event and the street trading restrictions will not apply to existing street traders with already assigned locations.

“The Restricted Marketing area includes all on-water areas for the America’s Cup, the surrounds of the Great Sound along the waterside, islands in the harbor, parts of Hamilton and the rail trail, starting from the junction where Middle Rd and South Rd meet, toward the direction of Bermuda’s west end as well as key transport hubs. Detailed maps are included to help the public be clear on the restricted areas.

“The aim is to protect the rights of America’s Cup official licensees who are all local businesses, and commercial partners, sponsor organisations and suppliers that have signed contracts or participated in an official tender process to be associated with the prestige and opportunities that the America’s Cup offers.

“For this reason, the entire area from Mangrove Bay to Dockyard is a Restricted Marketing area, meaning no new business activity can set up from now until 7th July, unless they have received permission from the America’s Cup Event Authority [ACEA], which may be given, if there are no conflicts as outlined above.

“The restrictions, as stated on the Order, are designed to “obtain maximum benefit for Bermudians whilst preventing unauthorized commercial exploitation at the expense of the America’s Cup Event Authority or any of its designated commercial partners”, many of which are Bermuda businesses.

“This type of regulation is commonplace with large sporting events, as the event expenses are largely paid for by commercial partner participation. Partners see value in their financial contribution, with extra business and marketing exposure that comes from being associated with a prestigious global event that attracts global television audiences. It is important, therefore, that a company that is not an official partner of the event, should also not benefit from the event. This protects the rights of official commercial partners and sponsors.

“It is this same intent to protect commercial partners’ rights that is reflected in the list of Prohibited Items in the Terms & Conditions of entry to America’s Cup Village, to prevent commercially branded clothing and objects from being used in an obvious attempt at ambush marketing. Individuals can wear any clothing they wish, branded or otherwise, if it is not a part of a marketing exercise.

“The full Terms & Conditions can be read here

“For example, if a new food vendor sets up outside the America’s Cup Village, or nearby, this would potentially take business away from the local food and beverage vendors who have worked the contractual right to work in the America’s Cup Village, serving quality local cuisine.

“In addition, the America’s Cup Act 2015 provides that no business or person can use the words ‘America’s Cup’ and any other words, logos or emblems related to the America’s Cup [as set out in the America’s Cup Act 2015] in any advertising without the express authority of the America’s Cup Event Authority. This is reserved for official partners and licensees.

“Locals should be aware of Bermuda’s existing advertising laws which restrict advertising. Locals should not be lured into deals with companies to use private property for such purposes.

“New vendors who intend to set up shop in areas outside of the Restricted Marketing area should ensure they have all necessary permits, including a vendor license from Bermuda Economic Development Corporation [BEDC] where necessary, a permit for use of any public land, including rail trail, parks, roadside verges and car parks and, where food is involved, a health certificate.

“Vendors wanting further information on permits should contact BEDC and further information on the Restrictive Marketing Order can be sought from the Bermuda government’s America’s Cup office at 295-5151 ext 4722.”

Text provided by the ACBDA on understanding the “Advertising and Street Trading Restrictions”

1. Advertising in the Restricted Marketing zone

The America’s Cup Restricted Marketing Order 2017 provides that the on-water area for the 35th America’s Cup and certain on-land areas of Dockyard, Sandys, Southampton, Pembroke and the City of Hamilton and key transport hubs are a Restricted Marketing zone. See the Order for the full map identifying the Restricted Marketing zone.

No company or individual can display or distribute any advertisement or branding in any public place in the Restricted Marketing zone, except with the written permission of the America’s Cup Event Authority [“ACEA”].

This restriction does not apply to:

• any advertisement in a periodical or newspaper in circulation in Bermuda;

• any advertisement by a company on a permanent structure in the ordinary course of business and which does not attempt to associate with the 35th America’s Cup; or

• businesses or vendors with licensing agreements with the ACEA.

2. General advertising restrictions

The America’s Cup Act 2015 provides for the following prohibited activities, except with the written permission of ACEA:

• suggesting that there is any association between a individual or business and the America’s Cup during the period of the event by selling goods or services;

• using the following America’s Cup branded words in advertisements: America’s Cup, ACEA, ACRM, ACWS, AC35, AC45, AC62, AC2017, AC Class, LVACWS, World Series of Racing, World Series of Sailing” or “World Series of Yachting”; or

• using any America’s Cup logo emblem or a similar logo or emblem in advertisements.

These restrictions do not apply:

• for the purposes of reporting news in a newspaper or magazine or by television, radio, film and the internet; or

• to businesses or vendors with licensing agreements with the ACEA.

3. Street trading restrictions

The Restricted Marketing Order 2017 provides that street trading, i.e. the selling of goods or services, is prohibited in the Restricted Marketing zone.

This restriction does not apply to businesses or individuals that were already trading on 15 May 2017 from an approved location.

4. Penalties

The penalty for knowingly committing a violation of the Restricted Marketing Order 2017 and/or the America’s Cup Act 2015 is a fine of up to $20,000.

If you are unsure if your marketing material is in violation of the Restricted Marketing Order 2017 or the America’s Cup Act 2015, it’s your responsibility to contact the ACEA for clarification.

The full Restricted Marketing Maps follow below [PDF here]:

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