Transcript Paul Van den Bulck

Gambling and advertising
European regulation
Paul Van den Bulck
Attorney at the Paris and Brussels Bars (Partner Ulys Law Firm)
Lecturer at University Robert Schuman
www.ulys.net
[email protected]
I. Introduction
Different topics / issues which cross each other :
• Rules on gambling on advertising;
• Intellectual property rights related to a sport
event;
• Sponsorship
II. Advertising and promotion of
Gambling
A. Absence of specific European provisions
•
Television without frontiers Directive :
no specific bans
•
Gambling excluded from :
- the E-commerce Directive
- the directive on services in the internal market
B. Treaty provisions
• Article 50 EC: gambling =
« services » as provided for against
remuneration
• Consequence: benefit from article
49 EC freedom to provide services
C. ECJ case law
•
Limits possibility for Member States to restrict the free movement
of gambling services across the EU to the statistical proof by the
Member States of a « consistent gaming policy » (Lindman,
Gambelli, Placanica), i.e, MS may not prohibit the advertising of
gambling services by foreign private operators where they
themselves incite their consumers to play through intensive
marketing campaigns by their monopolies (eg, Française des
Jeux)
•
Constant ECJ case law: National legislation which prohibits the
pursuit of activities related to gaming and bets, in particular bets
on sport events, without a licence or a police authorization issued
by the Member State concerned, constitutes a restriction on the
freedom of establishment and the freedom to provide services
•
Articles 43 and 49 EC
• Member states are free to set the
objectives of their policy on betting and gaming
• BUT the restrictive measures that they impose must :
- be exceptional or justified for
reasons of overriding general interest
(consumer protection)
- be proportionate with regard to the
reasons adduced: criminal penalties are
disproportionate to achievement of aim
(Gambelli, Placanica)
- be applied without discrimination
- reflect a « consistent and systematic
policy » (Gambelli, Placanica)
C. Outline of the national situations
• European Commission
Legal restrictions on gambling in several
countries are subject to scrutiny by the EC:
ongoing infringement procedures on grounds of
restrictive gaming legislation (≠ article 49),
mostly related to sports betting restrictions
(Germany, Italy, Sweden, Denmark, Finland, the
Netherlands, France, Austria and Hungary)
•
France : banning of gambling advertising for illegal games of chance (+ criminal
penalties)

Law of 21 may 1836 (art.4 prohibits sports betting and lottery advertising):
« light » 4.500 €

Law of 12 July 1983 (art. 1 prohibits games of chance for money’s worth):
games of chance advertising punished by rules governing criminal complicity:
max 3 years imprisonment + 45 000 € fine

BUT new law on the prevention of delinquency brings fines up to 30
000 € with possibility for Courts to multiply this fines by four times the amount
invested in advertising expenses: encompasses all forms of gambling
advertising, incl sports betting advertising: entry into force 5th September 2007
 Following Placanica, French gambling advertising restrictions contrary to EU law
since criminal penalties are imposed while France does not have a consistent
gaming policy, ie, in breach of EU law should be repelled
+ recently : French CSA wrote to Canal +, Eurosport, Direct 8, Jet (concerning the
promotion of on line games)
•
UK : - Gambling Act (2005) contains specific gambling advertising rules
- September 2007 : new rules announced
III. Gambling and Sponsorship
A. Definition and characteristics of the
sponsorship
B. Sponsorship and gambling : specific
issues
1. Other legal uses of emblems / signs /
trademarks and names of the sport event
2. What about the case where the sports
event does not take place or the sportsman
cannot participate ? (ex : UNIBET)
A. Definition and characteristics of
sponsorship
1. Definition
= a business relationship between a
provider of funds, resources or services
and an individual, event or organization
which offers in return rights and
association that may be used for
commercial advantage in return for the
sponsorship investment
2. Characteristics
• The organizer of the event grants to the
sponsor intellectual property rights
example : use of the trade marks
• The organizer of the event grants to the
sponsor the right to associate to the sport
event
• This could be done with advertising,
promotion, etc…
B. Sponsorship and gambling :
specific issues
1. Other legal uses of emblems / signs /
trade marks and names of sport events
: description and right of information
2. Case where the sportsman or the team
cannot participate ? When the sport
event does not take place ?
1. Other legal uses of trade marks / signs/
emblems …
a.
Issue
What about the use of the name of the sport
event by other firms than official sponsors and
licensees ?
b.
Principle : a third party cannot use a trade mark
« in the course of trade »
Advertising is covered by the « course of trade »
c.
Exceptions :right of information and use of a trade
mark with descriptive aim
c.1. Right of information
• The right of information may limit the
monopoly of a trade mark
• Information is not restricted to the media
c.2. Use of a sign with descriptive aim
• A trademark can be used by a third if this
use is made with descriptive aim, in its
usual sense
• ≠ a use « as a trade mark »
• Legal dispositions :
- Article 17 TRIP’s
- Article 6 Harmonization Directive
• Article 17 TRIP’s - Exceptions
“Members may provide limited exceptions to
the rights conferred by a trademark, such as
fair use of descriptive terms, provided that
such exceptions take account of the
legitimate interests of the owner of the
trademark and of third parties.”
• Article 6 of Directive n°89/104 : limitation
of the effects of a trade mark
“ 1. The trademark shall not entitle the proprietor
to prohibit a third party from using, in the
course of trade :
(b) indications concerning the kind, quality,
quantity, intended purpose, value,
geographical origin, the time of production of
goods or of rendering of the service, or other
characteristics of goods or services;”
• Application case (ECJ)
- « Hölterhoff » case :
the proprietor of a trade mark cannot rely on his
exclusive right where a third party, in the course
of commercial negotiations, reveals the origin
of goods which he has produced himself and
uses the sign in question solely to denote the
particular characteristics of the goods he is
offering for sale so that there can be no
question of the trade mark used being
perceived as a sign indicative of the
undertaking of origin
• Application cases (France)
- Case « Tour de France » v/ «Tour voile »
- Court of Appeal, Paris, 28 march 2001
(« Gemka production » v/ « Tour de
France »)
a trademark can be used by a third when
it is realized with the aim to identify the
sport event per se, in its usual sense
• Specific examples
Using of the name of a sportive event in his usual
sense, with descriptive aim :
- a sportive broadcasting which announce
the results of sport events
- a stock investment company which has to
quote the company to which it refers
MrBookmaker/Unibet cases
2. Case where the sportsman of the team
does not participate to the sport event
• « Unibet » case : team banned by the FFC
and the ASO from participating in french
races
• Sponsorship agreements generally preview
clauses to prevent this case, regarding to the
sponsorship fee
•
Examples
« The contractual parties shall support
each other to the best of their abilities
and shall take all reasonable measures
to fend off any possible procedures
against the advertising measures, which
are the subject of this Contract »
Agreements generally preview that in
such case the contract is terminated +
that the fees are reduced
IV. Spamming
A. Definition
= mailing of unsolicited bulk Emails
•
Unsolicited : recipient has not granted
verifiable permission for the message to be
sent
•
Bulk : the message is sent as part of a larger
collection of messages (with substantively
identical content)
B. Directive 2002/58/EC : protection
of privacy in the electronic
communications sector (article 13)
1. Principle : opt-in
The use of electronic mail for the purposes of
direct marketing is allowed if the subscriber
have given his prior consent
2. Exceptions to the principle
- existing customers (art. 13, 2)
- legal entity
2. Exceptions
• Existing customers : conditions (art. 13, 2)
- Collect of the details in accordance with
Directive 95/46
- Marketing of its own and similar products or
services
- Opportunity to object to such use of electronic
contact details when the details are collected and
on each message
• Mails sent to legal entity :
Only if the electronics details are impersonal
Example : [email protected]
V. Conclusion
Questions
&
Answers
Paul Van den Bulck
Partner at Ulys Law Firm (Paris-Brussels)
Lecturer at U. R. Schuman –Strasbourgwww.ulys.net
[email protected]