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- The OAR and PAR are infringed by use of a 'controlled representation'184 in the course of trade.
A 'controlled representation' is defined in the 1995 Act (in respect of infringement of the association right) as referring to 'a representation of the Olympic symbol, the Olympic motto or a protected word, or... a representation of something so similar to the Olympic symbol or the Olympic motto as to be likely to create in the public mind an association with it'185 (infringement occurs where such a controlled representation is made in the course of trade and without the required consent).
The controlled representations include the five rings emblem, the words 'Olympics' and 'Paralympics' and variations thereof, and the official mottos, or anything so similar that would also create an association with the Olympics.
According to LOCOG, 'use in the course of trade' bears its ordinary meaning, and includes use of a controlled repre- sentation in advertising and on goods, and in relation to the supply of services.186 It seems likely that interpretation of 'use in the course of trade' will be interpreted in the same way as in trademark law, i.e. where use takes place in the context of a commercial activity with a view to an economic advantage, and not as a private matter.187 The effect of the legislation is that use of a 'controlled representation' in the course of trade is deemed to infringe, and the burden of proof is on the user to show that, in the particular circumstances, no such association is made out, or that one of the defences under the 1995 Act applies.188 However, it is difficult to imagine circumstances where use of the five Olympic rings, for example, would not create such an association.189
184 The expression 'controlled representation' is defined in section 3 of the 1995 Act, as amended by para 3 of Schedule 3 to the 2006 Act and applied and modified in relation to the London Olympics association right by para 10 of Schedule 4 to that Act.
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