Part 2: Association with the Games Section 5: Exceptions to the prohibition on unauthorised association
Section 5 establishes a number of circumstances where activities are not prohibited (and so do not require authorisation by the Organising Committee).
	Subsection (1)(a) provides that it would not be an unauthorised association for a business to use a trade mark registered in its own name, or which it has been granted a licence to use (provided the relevant goods or services are registered for that use). Similarly, subsection (1)(b) provides that it would not be an unauthorised association for a business to use its own registered design.
	Subsection (1)(c) protects the use of a representation under another right that existed before the date on which the Act obtains Royal Assent. This provision is designed to ensure that those who obtained rights, which, for example, may include an unregistered trade mark or design or the sort of rights which may be enforced through an action for passing off, before that date are unaffected by the restriction. In contrast, a person who acquires a right on or after that date would need to register that right if they wish to suggest an association with the Games. Under the Trade Marks Act 1994, the rights of a proprietor have effect from the date of registration, which is the date of filing the application for registration (sections 9(3) and 40(3)). Equivalent provision applies to registered designs (section 3C of the Registered Designs Act 1949).
	Subsection (2) allows a representation to be used by a business if the representation was used in that way before 21 December 2017 and has been used by the business continuously since that date. This is the date on which the Games were awarded to Birmingham by the Commonwealth Games Federation. For example, a company established in 2007 under the name of Commonwealth Foods and which has consistently traded under that name, would not infringe the prohibition unless, since the Games were awarded, that business changed the way in which it used the representation. This enables a person who does not have an enforceable right - protected by virtue of subsection (1)(c) - but who nevertheless carried out their business in a particular way before the Games were awarded (and so could not have anticipated that representations suggesting an association with the Games might be restricted), to continue to carry out their business in that way even if doing so might have such an effect.
	Subsection (3) provides for certain exceptions, such as the use of certain types of factual information when providing goods or services, which would not amount to an unauthorised association with the Games. This includes representations that describe (amongst other things) the purpose, quality or origin of a product or service. For example, a restaurant might state on its website that it was within walking distance of Alexander Stadium, a venue for the Commonwealth Games in 2022. This would be a factual description and would not be deemed an unauthorised association.
	Subsections (4) – (6) provide that it is not an unauthorised association to use a representation in a Games related publication or broadcast for reporting purposes. This is to ensure that information about the Games can be shared - such as in news broadcasts. However, this exception does not apply if the activity has the purpose of promoting something other than the Games. Incidental inclusion of the Games in other artistic endeavours would also not be deemed an unauthorised association.
	Subsection (7) enables goods sold in accordance with an authorisation to be further sold without breaching the prohibition, provided this is done in accordance with the authorisation.
	Subsection (8) provides that the use of a representation by the Organising Committee does not constitute an unauthorised association.
	Subsection (9) sets out that exceptions relevant to providers of information society services are contained in Schedule 1.