Gambling and advertising European regulation

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Gambling and advertisingEuropean regulation

• Paul Van den Bulck
• Attorney at the Paris and Brussels Bars (Partner
  Ulys Law Firm)
• Lecturer at University Robert Schuman
• www.ulys.net
• paul.vandenbulck_at_ulys.net

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I. Introduction

• Different topics / issues which cross each other
  
• Rules on gambling on advertising
• Intellectual property rights related to a sport
  event
• Sponsorship

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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

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B. Treaty provisions

• Article 50 EC gambling  services  as
  provided for against remuneration
• Consequence benefit from article 49 EC freedom
  to provide services

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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

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• 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)

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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)

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• 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 moneys 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

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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)

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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

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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

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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 ?

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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

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• c.1. Right of information
• The right of information may limit the monopoly
  of a trade mark
• Information is not restricted to the media

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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 TRIPs
• - Article 6 Harmonization Directive

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Article 17 TRIPs - 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.
•  

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Article 6 of Directive n89/104 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

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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

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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

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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

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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

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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

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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)

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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

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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 info_at_company.be

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• V. Conclusion

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Questions Answers

Paul Van den Bulck Partner at Ulys Law Firm
(Paris-Brussels) Lecturer at U. R. Schuman
Strasbourg- www.ulys.net paul.vandenbulck_at_ulys.
net