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The World Cup, Le Tour de France and the
Commonwealth Games: Tempting times for
ambush marketing
United Kingdom | Intellectual property | Consumer | Food and
drink | Retail | TMT
19-05-2014
During major sporting events, certain brands will actively
pursue an ambush
marketing strategy meaning that they will deliberately seek to
associate their
products with an event, despite not being one of the official
sponsors. However,
the complexity and ambiguity of relevant rules and restrictions
means that
without care, other brands will unwittingly infringe rights
connected to sporting
events.
This note is an overview of the ambush marketing landscape and
includes details
of key event trade marks, mascots, slogans, lists of official
sponsors and
approved guidance.
This summer, the World Cup in Brazil will attract huge global
audiences which along with
the Commonwealth Games in Glasgow and the Tour de France in
England and France,
will fill news channels and social media for weeks on end. This,
in turn, allows organisers
and broadcasters to drive advertising revenue from brands which
want to be connected
with success.
Inevitably, some brands that do not want to pay for sponsorship
rights will still seek to
be associated with these events. The most eye catching examples
of ambush marketing
occur when brands physically hijack events this not only creates
an impact at the
venue, but often attracts wider news coverage. This happened as
36 Dutch supporters
were ejected from a game during the South Africa World Cup in
2010, when they arrived
dressed in orange outfits advertising a rival to Budweiser, the
authorised beer. Other
brands, although not engaging in physical activity, will
deliberately use adaptations of
rival brands famous marks or sporting imagery in their
advertising, perhaps without
expressly referring to the event itself. Again, brands engage in
such activity at their
own risk.
However, there are many brands that inadvertently fall foul of
the complexities of the
law in this area. Sometimes, this is because they wrongly
believe that using imageryaround such events is somehow public
domain, or that as long as they do not use the
official name or logo, no issues arise. Others cast an eye on
what other brand owners
are doing, and simply adopt a similar approach, without
appreciating that they are
risking infringement claims.
The rules which protect the exclusivity of rights around
sporting events, and which are
used to prevent ambush marketing, are a complex blend of trade
mark law, passing off,
copyright, design rights, certain specific regulations (such as
the Glasgow
Commonwealth Games Act 2008 (Games Association Right) Order
2009), advertising
regulations and contract law (for example, in relation to use of
tickets).
For those wanting to avoid allegations of infringement, the
obvious first step is to look
to the guidance published by the organisers (relevant links are
in this note). It is
important to remember that this is the interpretation of the law
by the rights holders
it is not necessarily the view a court would take if there was a
challenge to those
rights. Certainly, some would argue that the examples used by
event organisers go
significantly beyond the type of use that they are legally
entitled to control. But,nonetheless, it is the organisers stated
position, and so brands should only stray into
these areas knowing the risk they take on.
Even with one eye on the guidance offered by organisers, there
will be a large amount
of use that falls into grey areas for example, what happens if
brands simply want to
reflect what consumers are talking about if Jack Wilshire scores
3 against Italy, Chris
Froome wins the Tour De France and Mo Farah shows off the Mobot
at the
Commonwealth Games, then brands will want to engage in these
wider conversations,
especially in social media. Whether or not activations like this
will be infringing will
depend on many factors - on the event itself, what rightsthe
organiser has, the
identity and attitudeof the official sponsors, how the
advertising differs from what the
brand normally does, and whether consumers would believe that
the advertiser was an
official sponsor or not.
How to avoid allegations of ambush marketing
Using any of the intellectual property rightsreferred to in the
Appendices without
consent is usually high risk.
Using words or images which may create an association with, or
be viewed as
false endorsement of, the World Cup, Tour de France or
Commonwealth Games
carries risk and should be reviewed carefullybefore use.
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