Although it seems as if the cheers from the successful 2010 FIFA WORLD CUP SOUTH AFRICA™ are still ringing in our ears, the next FIFA WORLD CUP™ event is just a year away and FIFA™ is already taking steps to prevent against possible acts of ambush marketing in connection with the event.
On 10 May 2013, the Minister of Trade & Industry gave notice of a final prohibition on the use of certain words (including 2014 FIFA WORLD CUP BRAZIL, FIFA WORLD CUP and even just FOOTBALL WORLD CUP and SOCCER WORLD CUP) and emblems such as the FIFA 2014™ Official Emblem, in connection with any trade or business. The prohibition has been made in terms of the Merchandise Marks Act and signals the start of FIFA putting in place anti-ambush marketing mechanisms in South Africa similar to those which were in place for the 2010 FIFA WORLD CUP.
Any attempt by a trader to connect itself with a ‘sponsored event’, such as a sporting event like the FIFA WORLD CUP™ soccer tournament, without paying sponsorship fees, may be considered ambush marketing. South Africa has legislation in place to protect sponsors’ rights. The need to protect these rights is of paramount importance. Sponsors pay millions of dollars for the exclusive marketing rights afforded by their sponsorship deals and this provides funding for the event. It follows that failure to protect these rights could jeopardise the event itself.
When a trader or advertiser either directly or indirectly creates the impression that it is associated with an event, or is an official sponsor of the event, this is termed ambush marketing ‘by association’. When a trader or advertiser simply attempts unfairly to benefit from the publicity surrounding an event and to gain exposure for its own brand at the expense of the event, for example by giving away tickets to the event and running promotional competitions referring to the event, this is termed ambush marketing ‘by intrusion’. Both forms of ambush marketing are prohibited under South African law.
There are various pieces of legislation which come to the aid of the event organisers and sponsors and one of these is the Merchandise Marks Act, which enables parties to have certain marks declared ‘prohibited marks’. FIFA has seemingly applied for, and been granted, a prohibition on various marks which, if used by non-sponsors, could create the impression of an association with the event. A similar prohibition was granted in December 2007 in preparation for the 2010 FIFA WORLD CUP™. At the time, there was furore over FIFA’s application in terms of the Merchandise Marks Act because protection was sought for terms such as ‘2010’ and ‘SOUTH AFRICA 2010’. The protection ultimately granted was much narrower and in line with what FIFA has now sought in relation to the 2014 WORLD CUP™.
It should be noted that simply avoiding use of the various prohibited marks may not be sufficient to keep one out of trouble. There are various other pieces of relevant legislation and, unless they wish to land themselves in hot water, South African businesses would do well to toe the line and obtain advice in respect of any marketing in which even an indirect reference to the 2014 FIFA WORLD CUP™ is made.