Understanding Ambush Marketing
By Nandan Kamath
Major sporting events present an unparalleled platform for companies to gain worldwide visibility. However, given the grand scale on which these events are organised, it is not unusual to find a number of companies seeking to align themselves with these events without actually securing the official sponsorship rights. This tactic is known as ‘ambush marketing’. Broadly, the concept can be understood as an attempted association with an event and the values it stands for, without any authorisation from the organiser.
Preferred strategies for ambush marketing include:
- promotions where the prize is a travel package or ticket to the event;
- promotional giveaways using the official logo, words or symbols associated with the event;
- associating with the event without actually using the official logo, words or symbols;
- displaying banners in the stadium or causing a block of spectators attending an event to wear clothing that promotes a competitor product;
- using a sky banner or blimp over a stadium or venue, or in the viewable airspace surrounding stadium or venue where an official match or event is being played; and
- counterfeit merchandising, hospitality and unlicensed ticket re-sales.
The famous example in the Indian scenario is the series of advertisements released by a soft drink manufacturer at the time of the cricket world cup in 1996, with the tagline, “Nothing Official about it!”. A few notable illustrations of ambush marketing are featured below.
In the 2002 FIFA World Cup, held in Korea and Japan, Kirin Ichiban beer famously floated an ad that claimed to be the un-Official sponsor of the mega event. Budweiser was the official beer sponsor for the event, having secured that tag via a £20 million sponsorship over two successiveWorld Cup tournaments.
At the 2010 FIFA World Cup, a South African budget airline ‘Kulula’ launched an advertisement that described the firm as the “Unofficial National Carrier of the You-Know-What”. The advertisement featured pictures of stadia, vuvuzelas and national flags. FIFA directed the airline to remove the symbols, and even the words “South Africa” in this context. Taken together, it concluded that the images constituted an instance of ambush marketing.
Event organisers often enter into contracts with the host city and the host government prior to the event to prevent instances of ambush marketing. Further, event organisers also enter into contracts with the participating athletes, spectators and the official broadcasters. In brief, the contracts with the host city/government include provisions expressly stating the extent of the rights granted especially in relation to places such as airports, hotels and the actual venues for the event. Host city agreements also impose an obligation on the hosts to, if required, legislate on ambush marketing and to register the event organiser’s intellectual properties in the host country.Participating teams and players are bound by certain guidelines on their inclusion and participation in commercial messaging during, and around the time of, the major event.
In addition, the host country also provides certain guarantees to prevent ambush marketing at public places and prominent venues close to the stadium, to ensure adequate marketing support to the event organiser, to instruct local administration and law enforcement to cooperate with the event organisers and to protect intellectual properties relating to an event within the existing legal framework.
An important aspect of the rights protection programme for an event is the attempt to educate the public on the permissible and impermissible uses of the logos, names and trade marks associated with an event. To achieve this, the organisers of major sporting events release brand and content protection guidelines, ticketing terms and conditions, conditions for endorsement by participating players, news access and media accreditation guidelines.
These guidelines specify the manner in which third parties may use the intellectual property relating to an event (e.g. editorial use is permitted while commercial use is not), the manner in which third parties may seek to benefit from their association with a player participating in an event (e.g. the player can appear in advertisements while sporting neutral colours but cannot wear his team’s kit for the event), the manner in which ticket sales and transfer are regulated (e.g., only event sponsors are entitled to giveaway tickets through promotions), the manner in which media personnel are allowed to access the event, use images and footage (e.g., it is permissible to use footage and images for purely journalistic purposes but not permissible to use them in sponsored highlights packages).
Beyond the contractual measures available to the event organizer, there are remedies available to event organizers in general law. These include copyright and trade mark laws,‘passing-off’, misappropriation and other similar remedies. In certain cases, special legislation is enacted to protect a major sporting event.
Over the last few years, three models of legislation have been chosen by host countries of major sporting events to address ambush marketing:
(i) The amendment of existing laws, as in the case of the ICC Cricket World 2003 and the FIFA World Cup 2010 in South Africa;
(ii) The enactment of legislation specifically for sporting events, as in the case of the ICC Cricket World Cup 2007 in the West Indies; and
(iii) The enactment of blanket legislations for all designated major events, as in the case of New Zealand.
Laws enacted to address ambush marketing specify acts that would be deemed to constitute ambush marketing. They further specify the intellectual properties of event organisers that are protected under the legislation, including certain words (in isolation or in combination) that might otherwise not have been entitled to trademark protection. A major element of such legislation is notifying ‘clean venues/zones’ during the period of an event. This means that certain venues such as airports, official team hotels, areas surrounding the stadium, the stadium itself and prominent roads leading to the stadium necessarily need to be free from any commercial branding especially of the competitors of event sponsors. These venues then display branding of the event sponsors. As is standard practice, legislations that are enacted for a specific purpose contain a ‘sunset’ clause by specifying the date upon which the legislation lapses.
A comprehensive rights protection programme for a major sporting event must contemplate and predict a variety of potential ambush attempts and techniques. Sound strategy, contractual restraints and agile legal and operational planning are essential elements of successfully managing the associated risks.
© The Sports Law & Policy Centre