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

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 » €  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 € fine  BUT new law on the prevention of delinquency brings fines up to € 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 s 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 :

V. Conclusion

Paul Van den Bulck Partner at Ulys Law Firm (Paris-Brussels) Lecturer at U. R. Schuman –Strasbourg- Questions & Answers