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 imagery around 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 organiser’s 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 rights the organiser has, the identity and attitude of 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 rights referred 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 carefully before use.
- To avoid advertising being challenged, refer to the guidance and examples published by event organisers.
- Minimise any risks by obtaining legal advice at an early stage.
Please note that this note is not a substitute for legal advice and assumes any infringing activity would take place within England & Wales.