At the FIFA World Cup in 2010, billions of football fans around the world enjoyed weeks of great sporting action. FIFA’s Official World Cup Partners paid millions of dollars to enjoy exclusive marketing rights associated with South Africa 2010, including the right to enjoy direct association with the FIFA World Cup and use FIFA’s registered trade marks on goods and services. The Official Partners presumably would have benefitted from the obvious success of this first World Cup in Africa.

However, many companies who did not pay to become Official Partners of the FIFA World Cup still wanted to take advantage of the marketing opportunities offered by this large event, leading to claims of “ambush marketing”. “Ambush marketing” also sometimes known as “guerrilla marketing” refers to companies’ attempts to associate themselves with a major sporting event without paying for the exclusive rights. In some cases, attempts to associate themselves illegally with the FIFA World Cup landed companies in court in South Africa.

Prior to the FIFA World Cup 2010, South Africa amended its laws to ensure protection for sponsors against ambush marketing. In particular Section 15A of the Merchandise Marks Act was amended to prevent persons from using their own trade marks to obtain a benefit from a “protected event” (which the 2010 FIFA World Cup was designated as).

“For the period during which an event is protected, no person may use a trade mark in relation to such event in a manner which is calculated to achieve publicity for that trade mark and thereby to derive special promotional benefit from the event, without the prior authority of the organiser of such event.”

This language was intended to apply broadly to all forms of ambush marketing in relation to the 2010 FIFA World Cup. A breach of the provision would result in a criminal offence and also enable civil action to be taken against the offender.

Notwithstanding this sweeping legislation, the lure of consumer dollars was too much for some companies to ignore and many still tried to allude to the FIFA World Cup without actually using the FIFA official logos and trade marks. In 2009, Section 15 A of the Merchandise Marks Act was used against a company in South Africa selling lollipops branded “2010 pops” and which included references to footballs on the packaging. The company was forced to withdraw the offending goods.

Topping all attempts was Dutch brewery, Bavaria NV, which raised the stakes with a publicity stunt during the tournament at the match between Holland and Denmark. 36 mostly blond female supporters dressed in orange mini-dresses were evicted from the stadium by security after being spotted by officials. The orange mini-dresses were associated with Bavaria NV, which was not a FIFA World Cup 2010 Official Partner. FIFA threatened legal action against Bavaria and two of the women alleged to have organised the stunt were charged in court for breaching the Merchandise Marks Act. FIFA and Bavaria NV subsequently reached an out of court settlement. Unfortunately for FIFA, the incident led to massive media coverage for Bavaria and online traffic to Bavaria’s website rocketed, underlining the value of ambush marketing. Further, the aggressive stance by FIFA cast them as the villains in the piece with public support overwhelmingly in favour of Bavaria and the mini-skirted maidens.

What is the correct approach that should be adopted? In November 2010, the INTA Board of Directors adopted a resolution on ambush marketing aimed at countries which intend to introduce laws against ambush marketing. The resolution urges countries to adopt a balanced approach to the issue.

FIFA and the Organizing Committees of future Olympic Games will continue to aggressively pursue companies involved in ambush marketing with the support of host countries who, with so much at stake, are prepared to enact legislation enabling legal action. For example, the London Olympic Games and Paralympic Games Act 2006 gives the London 2012 Organizing Committee the right to prevent persons from creating an association between a business, goods or services and the London 2012 Olympic Games. We will have to wait to see if they have better luck than FIFA in this battle.