Along with all the stories of great sporting feats that have come out of the 2012 London Olympics, there’ve been a fair number of stories of absolute lunacy (and no, I’m not talking about Rowan Atkinson’s performance at the opening ceremony, or the performance of Boris Johnson’s hair at every appearance). There was the story of school children who were strongly ‘encouraged’ to wear only Adidas trainers at a parade ahead of the opening ceremony. There were stories of ‘branding police’ roaming the streets of Britain and ordering a London café owner to remove a display of five bagels arranged in the style of the Olympic rings, and an 81-year old grandmother to remove a doll’s jumper from sale at a charity fair because it bore the Olympic rings. Even being well-connected didn’t help - Kate Middleton’s family, who own a party planning business, were told to stop using phrases like ‘Celebrate the Games’ and the Olympic torch in connection with their products. Specsavers at least had some fun with this silliness, managing to take the mickey out of the organisers, who had caused great offence when they used the South Korean flag at a football match featuring the North Koreans – ‘get glasses from Specsavers and you’ll be able to distinguish the flags of the various countries’ was the cheeky message.
The same sort of thing happened in South Africa two years ago, of course, when we hosted the 2010 FIFA World Cup. Remember Eastwoods, the pub near Loftus that was ordered to remove the words ‘World Cup 2010’ which appeared on the roof of the premises? Remember how Metcash was told that it was unlawfully competing with FIFA because it was selling lollipops called 2010 POPS, in packaging consisting of the South African flag, and the numeral 2010 with footballs being used for zeroes? Remember how Kulula bowed to FIFA's pressure to stop using its ‘Unofficial National Carrier of the You-Know-What’ ad campaign, which featured stylized pictures of the Cape Town stadium, soccer balls, vuvuzelas, a soccer player, and the South African flag? And who could forget the 36 stunning female Dutch models who were ejected from a stadium for wearing orange dresses (the national colour), on the basis that they were promoting a beer called Bavaria, and therefore undermining beer sponsor Budweiser.
Welcome to the weird and wonderful world of ambush marketing. In its broadest form, ambush marketing occurs whenever a company that isn’t an official sponsor of an event tries to get some mileage out of the event (it could also relate to a team or even an individual, but in this article I’ll refer simply to events). In its most basic form, however, ambush marketing involves a company using the name, logo or imagery of the event (the event’s branding), or something similar, in connection with its own products. This form of ambush marketing is easy to deal with. If the event’s branding is registered as a trade mark, there will be trade mark infringement. If the event’s branding hasn’t been registered but has become sufficiently well known for people to assume that there is a sponsorship deal or some other business relationship between the company and the event, there will be passing off – in South Africa, the Trade Practices Act 1976 even created a form of statutory passing off. And, on top of that, it’s very easy for a country to pass laws that make it illegal for non-sponsors to use the event’s branding, or even words, phrases and images that might be similar. As happened in South Africa, when the Merchandise Marks Act was used to declare a whole range of words, phrases and images prohibited marks, including the official World Cup logo, as well as terms like ‘World Cup 2010’, ‘South Africa 2010’ and ‘SA 2010’.
But the companies who lay out the vast sums of money that enable us to enjoy great sporting events, decided long ago that this form of protection wasn’t enough. What they wanted was to be able to prevent competitor companies from selling their goods in or around the venues, from setting up their broadcast units outside the stadiums, and from pulling clever stunts like having planes carrying banners flying over the stadiums. In these cases it’s unlikely that the public will assume there’s any commercial link between the company and the event, yet the company still profits in some way from an event that it hasn’t sponsored. So an extended form of protection was created, one that prevents non-sponsors from ambush marketing through what’s sometimes referred to as intrusion. In South Africa, this was achieved by adding Section 15A to the Merchandise Marks Act. This provides that it will be unlawful for a non-sponsor to associate its brand with a protected event, or even allude to a protected event. The 2010 FIFA World Cup was naturally declared a protected event, and the host cities passed regulations to enforce these rules through the creation of exclusion zones outside the stadiums and along the major routes leading to them.
So where are we now? The Brits will kick and scream about the restrictions on the freedom to trade and the freedom to speak, but they’ll get over it because the Olympics only last for a few weeks. And in South Africa, we have long stopped talking about the severe restrictions that were imposed for the 2010 FIFA World Cup. But it would be a mistake to believe that there are no longer any restrictions on ambush marketing. It’s true that no further events have been declared protected events under the Merchandise Marks Act, which is why newspapers can get away with handing out boards to spectators at rugby and cricket matches featuring their mastheads and words like ‘Try’ or ‘Four’. But the restrictions relating to the basic form of ambush marketing – using the event's branding or something similar – are unchanged. And the ASA Sponsorship Code deals with sponsorship in great detail. It starts by recognising that ‘commercial sponsorship is an essential source of funding for many activities at local, national and international level,’ and that ‘Without sponsorship, many disciplines would face extreme difficulties and, possibly, extinction.’ It goes on to define ambush marketing as ‘the attempt of an organisation, product or brand to create the impression of being an official sponsor of an event or activity by affiliating itself with that event or activity without having paid the sponsorship right fee or being a party to the sponsorship contract.’ So be warned, ambush marketing is something that needs to be considered long and hard. And if you’re even thinking along these lines, take legal advice.