INTRODUCTION

Ambush marketing or ambush advertising is a class of advertising strategies, in which an advertiser markets themselves in such a way that it competes with or ambushes the marketing presence of a competitor. The term "ambush marketing" was coined by marketing strategist Jerry Welsh, while he was working as the manager of global marketing efforts for American Express in the 1980s

Ambush marketing involves an advertiser attempting to capitalize on the prominence of a major event, without paying the event's organizer to be an "official" sponsor. An advertiser may attempt to perform marketing within or near an event's venue, make false claims implying they are an official sponsor or are associated with the event, or allude to the imagery and themes of an event in their marketing without any references to its trademarks. Ambush marketing is most common in, but not exclusive to, major sporting events: the practice has been a growing concern to the organizers of major sporting events —such as FIFA (FIFA World Cup), the International Olympic Committee, and the National Football League, as such efforts devalue the exclusive sponsorship rights that they had sold to other companies.

In an effort to control ambush marketing, event organizers have, in recent years, required the host cities and countries of their major events to enact laws controlling commercial activities in and around an event site, implementing special restrictions on the use of the event's intellectual property, and additional restrictions on companies creating unauthorized "associations" with an event. Such regulations have attracted controversy for limiting freedom of speech, and for preventing companies from factually promoting themselves in the context of an event.

Event owners and official sponsors have campaigned vigorously against a practice they refer to as “ambush marketing”. By this, they have referred to a variety of activities undertaken by rivals of the official sponsor that could confuse the public as to the real sponsor. However, their arguments rest on ethical assumptions that have no standing in court; in fact, the case law to date indicates that many alleged instances of ambushing are quite legitimate. This paper examines a range of activities classified as “ambushing” and argues that marketers need to consider ambushing in legal terms – as either passing off or breach of trademarks. In addition, we suggest more explicit documentation of the rights

1 available to official sponsors, so they are better able to anticipate competitors’ likely actions. Finally, we call for a reduction in the range of sponsorship packages, which would reduce the potential for conflicting sponsorship arrangements.

DEFINITION

A marketing technique in which advertisers work to connect their product with a particular event in the minds of potential customers, without having to pay sponsorship expenses for the event. An example of ambush marketing might involve selling music merchandise just outside the grounds of a concert without the consent or awareness of the concert promoters, relying on association with the concert to drive sales.

The practice by which a rival company attempts to associate its products with an event that already has official sponsors.

Ambush marketing refers to a company’s attempt to capitalize on the popularity of a well- known property or event without consent or authorization of the necessary parities. It is a marketing strategy in which a competing brand associates itself with major sporting events without paying sponsorship fees.It is an attempt by a third party to creat adirect or indirect association with an event or its participants without their approval, hence denying official sponsors, suppliers and partners, part of the commercial value due to their official designation.

Events such as Olympics, cricket or football world cups, super bowl , the recent commonwealth games, 2010 organiszed in Newdelhi etc. provide a platform to coporations to showcase their products facilitating promotion of their products in hunders of countries and to millions of people.

EVOLUTION OF AMBUSH MARKETING

Sponsorship’s growth occurred for two main reasons:

First, researchers have claimed it could break through clutter that affected advertising; this made it an increasingly attractive alternative to mass media advertising (Meenaghan 1998a).

2 Second, event owners became more sophisticated at developing packages that enabled them to obtain higher returns from their events (Altobelli 1997). For example, strategies that developed different levels of sponsorship and that promised exclusivity within each level enabled the IOC to make a profit of over $US200 million on the 1984 Olympic Games. These were also the first Olympics to operate with no public money (Graham, Goldblat & Delpy 1995 p207).

While sponsorship’s attractiveness increased, marketers’ ability to enter into sponsorship contracts decreased as the cost of securing these and the level of competition for them rose.

Ambush marketing thus arose when companies that were formerly able to associate themselves with certain high-profile events (such as the Olympics) became excluded from official sponsorship deals, either by way of increased costs or category exclusivities. Sandler and Shani (1989) suggested that the first instance of ambush marketing occurred when Kodak failed to secure sponsorship rights for the 1984 Olympic Games to Fuji. Undeterred, Kodak became the sponsor of the ABC’s broadcasts of those Games and the “official film” of the U.S. track team.

If Fuji was the victim of ambush marketing in 1984, it is widely accepted that it exacted its revenge on Kodak in 1988 (Bayless 1988; Fannin 1988). Kodak secured the worldwide category sponsorship for the 1988 Olympic Games, but Fuji aggressively promoted its sponsorship of the U.S. swimming team. In a parallel move, although CocaCola secured official worldwide sponsorship rights to the 1990 Football World Cup, Pepsi sponsored the high profile Brazilian soccer team (Falconer 2003).

The International Olympic Committee (IOC) has expressed strong concern over ambush marketing, however, the Olympic Games are not the only event where confusion over sponsors and their rivals has occurred. Few will have forgotten the failure by the New Zealand Rugby Football Union (NZRFU) to secure co-hosting rights to the 2003 Rugby World Cup. In announcing their decision to make the Australian Rugby Football Union the sole World Cup hosts, the International Rugby Board (IRB) noted that the NZRFU had been unable to guarantee “clean” stadia. Ultimately, the NZRFU’s bid for hosting rights foundered in part because of the IRB’s determination to close promotion loopholes that rivals of official sponsors might exploit.

3 A similar situation arose in early 2003, when the Indian cricket team came close to boycotting the ICC Champions Trophy tournament. Players expressed concern that personal advertising and endorsement contracts they had entered into would conflict with the ICC anti-ambush rules, designed to ensure official sponsors had exclusive promotional rights during the event (Reuters 2002).

These examples provide a brief overview of the relationship between sporting commercialisation and ambush marketing. The status of sportspeople as role models and heroes of young consumers also increases the likelihood of conflict between event, team and individual sponsorship contracts. However, although few would dispute that these conflicts have increased in number and scope, considerable debate over what constitutes ambush marketing still exists. The following section examines specific instances of alleged ambush marketing in more detail and considers the extent to which these breach fair trading and trademark statutes.

TYPES OF AMBUSH MARKETING

Direct Ambush Activities

This is when a brand intentionally tries to make itself seem associated with an event or property for which it has purchased no rights and is not an official sponsor. Some companies choose to do this mainly to attack rivals; others do it just to capitalize on the large audience generated by the event or team.

 Predatory Ambushing: Intentionally attacking a rival's official sponsorship in an effort to gain market share and to confuse consumers as to who the official sponsor is. A good example is the Amex campaign used against Visa during the 1992 Summer Games.  Coattail Ambushing: The attempt by a brand to directly associate itself with a property or event by using a legitimate link other than becoming an official sponsor of the property or event. For example, a sports-apparel company may sponsor an athlete who is participating in an event not sponsored by the brand, an event that perhaps is even sponsored by a rival brand.

4  Property Infringement: The intentional unauthorized use of protected intellectual property. Such properties can include the logos of teams or events, or making use of unauthorized references to tournaments, teams or athletes, words and symbols.  Self-Ambushing: Marketing activities by an official sponsor above and beyond what has been agreed on in the sponsorship contract. This includes things like handing out free promotional T-shirts at a game, without the sports organization's permission. The brand may have already covered the stadium with its signs, or the organization may have earlier agreed to let a different brand hand out shirts. In either case, it clutters the marketing space, ambushes the organization the brand is supporting and infringes upon other official sponsors.

Indirect Ambushes

These are defined as the intentional association of a brand with an event or property through suggestion or indirect reference. As in direct ambushes, many companies using this type of ambush marketing see it as simply another way to publicize and market their goods, with no motives concerning their rivals' sponsorship activities.

 Associative Ambushing: The use of imagery or terminology to create an allusion that an organization has links to a sporting event or property. In the summer of 2008, for example, marketing campaigns by Nike Inc. made frequent use of the number 8—a symbol of luck and fortune in China, as well as a symbol for the Games. Nike was not a sponsor of the Beijing Games. Asked to comment for this article, a Nike spokesman noted that the company is a sponsor for teams and athletes who compete in the Olympics. The spokesman wrote in an email, "With respect to all our product and campaigns, we respect the intellectual property rights of others (including the IOC and our competitors), and always strive to remain within legal boundaries."  Distractive Ambushing: Setting up a promotional presence at or near an event without making specific reference to the event itself, its imagery or themes, in order to intrude upon public consciousness and gain awareness from the event's audience.

 Values Ambushing: The use of an event or property's central value or theme to imply an association with the property in the mind of the consumer. In its soccer-

5 related advertising during the spring and summer of 2008, for example, Germany's Puma AG included the slogan "June 2008: Together Everywhere." The European soccer championships were played that month, and the tournament's own marketing was emphasizing themes of unity and anti-racism. A Puma spokeswoman says its campaign was part of the company's seasonal soccer ad campaign and was meant to be "a reflection of bringing football fans from all over the world together during a football tournament." Being a leading soccer brand, Puma "would be remiss" if it didn't "recognize" such events, the spokeswoman added.  Insurgent Ambushing: The use of surprise street-style promotions at or near an event. For example, on a major road leading to the 2008 French Open tennis tournament in Paris, sports-shoe and apparel-maker K-Swiss Inc. parked a car that appeared to have been squashed by a giant K-Swiss-branded tennis ball. Across the street, a K-Swiss van distributed gifts and marketing materials highlighting the brand and its involvement with tennis. K-Swiss did not respond to requests for comment.  Parallel Property Ambushing: The creation or sponsorship of an event or property that is somehow related to the ambush target and competes with it for the public's attention. For instance, seven days after the Beijing Olympics ended, Nike launched an annual, one-day global running event held in cities across the world.

Incidental Ambushing

This is when consumers think that a brand is a sponsor or is associated with an event or property without any attempt on the brand's part to establish such a connection. Even if it's not intentional, this kind of ambushing can be an issue for the host organization and for other sponsors because it clutters the marketing environment.

Unintentional Ambushing:

6 Sometimes media coverage will mention equipment or clothing used by an athlete, or a company that is providing a service in support of an event. Consumers can come away thinking the company is an official sponsor of the event. Speedo, for example, was mentioned frequently during the Beijing Games due to the success of swimmers wearing its LZR Racer swimsuits. In marketing studies after the Games, consumers incorrectly identified Speedo as a sponsor. Such incidents can distract rights-holders and organizers from defending sponsors against direct threats. A spokesman for Speedo, which is owned by Pentland Group PLC of the U.K. but licensed in North America to Warnaco Group Inc. of New York, says the publicity the LZR received during the games was all due to "the incredible performances" of the swimmers.

Saturation Ambushing:

Saturation ambushers increase their advertising and marketing at the time of an event, but make no reference to the event itself and avoid any associative imagery or suggestion. Their goal seems to be simply to capitalize on the increased broadcast media attention and television audiences surrounding the event.

AMBUSH MARKETING STRATEGIES

Meenaghan (1996 p106) identified five commonly employed ambush marketing strategies.

These include sponsoring media coverage of an event, a sub-category within the event, or contributing to a “players’ pool”. Meenaghan also noted that advertising coinciding with a sponsored event or other promotion, or deflecting attention away from the event, could also be considered ambushing.

(1) Sponsoring Media Coverage of an Event

In some events, sponsorship rights to the event itself do not include associated media rights. As a result, some sponsors discover their rivals have obtained broadcasting rights and, in some cases, higher profiles than they themselves obtain, despite their official status. The most famous example of this is Kodak’s sponsorship of the ABC broadcasts of the 1984 Olympics,

7 As Fuji had purchased the exclusive category rights to this event from the IOC, Payne considered they had a legitimate right to publicity that might be generated by the event. Kodak infringed upon this right when it purchased the broadcasting sponsorship rights, thereby gaining an association with the event and access to its audience.

Kodak’s behaviour, when viewed from Welsh’s perspective, would place more responsibility on the event owner’s behaviour. The category exclusivity introduced in 1984 by the IOC prevented Kodak from obtaining any exposure opportunities once Fuji had secured the Games sponsorship. Worse, because the Games drew such a large audience, many of the other promotional options open to Kodak would have afforded a reduced reach over the period of the Games. Kodak simply chose to capitalise on an ancillary promotional opportunity that was legitimately available for purchase.

From a legal point of view, it is clear that Kodak’s behaviour did not breach the contract Fuji held with the IOC. Rather, the IOC, in its eagerness to maximise its revenue from both sponsors and broadcasters, failed to protect its sponsors sufficiently. If Fuji believed they had purchased an entitlement to broadcast rights as part of its contract with the IOC, the dispute was a matter between Fuji and the IOC. If Fuji had not expected to obtain broadcast rights as part of the sponsorship contract, they were either remiss in not obtaining these or naïve in believing that a competitor would not take advantage of opportunities legitimately open to it.

(2) Sponsoring a Sub-Category within an Event

In 1988, the roles were reversed: Kodak secured the worldwide category sponsorship for the 1988 Olympic Games, while Fuji obtained sub-sponsorship of the U.S. swimming team, which it promoted aggressively (see Fannin 1988 pp64-70; Bayless 1988 pB1). In this instance, the IOC had conferred official sponsor status on Kodak and viewed Fuji as usurping this arrangement. However, from Fuji’s point of view, they had not retained their official sponsor rights and so took advantage of other opportunities that remained available. It is possible that Kodak did not foresee this possibility, though this would be surprising, given their own behaviour in 1984.

8 Alternatively, the costs of Kodak’s sponsorship may have reflected the fact that competitors could purchase sub-category rights. In this case, the IOC arguably placed more emphasis on ensuring its own revenue streams than it did on safeguarding sponsors’ interests.

A recent Canadian case also illustrates the potential problems generated by sub- category sponsorship. The National Hockey League (NHL), which represented 21 ice hockey teams, generated a substantial proportion of its income by selling licences to manufacturers who could then use the NHL logo, or the logos of its member teams. CocaCola entered into a contract with the NHL to become official soft drink supplier. However, PepsiCo obtained advertising rights through Molson Breweries, which held broadcast sponsorship rights to the NHL. As well as advertising, Pepsi ran a competition where certain bottle lids featured statements linked to NHL outcomes. The statements did not name specific NHL teams, but refereed to the cities where the teams were based to avoid using registered trademarks.

The NHL sued Pepsi for passing themselves off as official sponsors or as having an official association with the NHL, neither of which were true. However, because Pepsi had used disclaimers in their advertising, which stated that they were not official NHL sponsors, the

Court ruled that there was no evidence to support the allegation of passing off Although the NHL could not prevent Pepsi from running its competition, a more robust contract with CocaCola would have included broadcast rights or some provision that prevented the holder of these from on-selling them to CocaCola’s competitors. A restraining provision such as this would have reduced the exposure Pepsi were able to obtain for their competition.

McKelvey (2003) notes that NCAA v Coors, a very similar case to NHL v Pepsi but to be heard in the US, is likely to provide an important precedent in determining the extent to which themed promotions run by non-sponsors constitute behaviour that is likely to mislead consumers.

(3) Making a Sponsorship-Related Contribution to a Players’ Pool

9 As well as purchasing mass media sponsorship rights, rivals of official sponsors can also sponsor teams or individuals competing within specific events. Examples of this form of sponsorship include adidas’ sponsorship of Ian Thorpe when Nike was the official clothing supplier for the Australian Olympic team. Curthoys and Kendall (2002) noted that Thorpe was photographed with his towel draped over Nike’s logo at a medal presentation ceremony (para 69), a gesture they suggest was necessary to protect his personal contract with adidas.

Payments to individuals or teams raise the question of whose rights should prevail – those of individual athletes or teams, or those of sporting associations and event owners? The brand endorsement contracts held by members of the Indian cricket team clearly illustrate the potential for conflict between event sponsors and individual sponsors. Team members’ lucrative endorsement contracts generate considerable personal revenue and run counter to the

International Cricket Council (ICC) ruling that bars players from endorsing the products of companies who are the rivals of ICC sponsors for 30 days either side of ICC events.

These examples suggest that companies involved in sub-category sponsorship have not necessarily engaged in illegal behaviour. Although official sponsors may see the appearance of rivals’ insignia at an event as likely to create confusion, this argument overlooks the fact that rivals have the right to promote their sponsorship associations. Disputes between Reebok, who was official apparel supplier to the US team at the 1992 Olympics, and Nike, who contracted the US track and field team to wear Nike clothing when competing, illustrate this problem.

Reebok considered Nike guilty of stealing exposure and publicity they believe they had purchased when they obtained the apparel sponsorship for the entire U.S. team. However, Nike argued they simply exploited a legitimate sponsorship opportunity open to them.

Moreover, Nike’s contracts with some of the athletes, for example Michael Johnson, existed well before the 1992 Olympics. Overall, Reebok’s involvement with the U.S. Olympic team did not prevent Nike from finding ways to publicise its relationships with athletes and athletics. The ability to exploit these relationships was constrained

10 only by the legally binding agreements that existed between individual athletes, teams, associations, governing bodies and event owners

The existence of earlier sponsorship contracts questions the level of exclusivity that event owners can offer prospective sponsors and may require a reconsideration of the benefits “exclusive” sponsorship can actually deliver. In particular, the fact the event owners do not own media, venues, or competitors, means they cannot exert full control over all other contracts that may exist. Contracts that specify the contingences within and outside the control of event owners would clarify sponsors’ expectations and make them more alert to their competitors’ likely behaviour. This, in turn, could provide a stronger basis from which to take any legal action, should a rival’s actions breach the contract.

(4) Engaging in Advertising that Coincides with a Sponsored Event

As well as entering into other contracts, within the event or with athletes or teams, rivals of official sponsors can also purchase normal advertising time and space. Event owners and official sponsors have viewed intense advertising by a competitor during or around a sponsored event as another form of ambush marketing. Large international sporting events, such as the Olympic Games or Football or Rugby World Cups attract very large audiences, at least some of whom will see or hear advertising that screens during interval periods.

Official sponsors have expressed even more concern about themed advertising that features competitors from sponsored events. For example, during the 1992 Winter Olympics, McDonald’s were the official sponsors of the U.S. team, yet Wendy’s featured Kristi Yamaguchi, an Olympic champion figure skater, in its advertising (see Jensen 1995 p3). Yet while McDonald’s viewed Wendy’s behaviour as ambushing, Wendy’s argued they had a right to maintain the saliency of their brand during the Olympic Games, using airtime available to all advertisers.

(5) Development of Other Imaginative Ambush Strategies

11 As marketers make greater use of new media such as text messaging and event merchandising, so ambush marketing strategies have also become more creative. Fosters allegedly ambushed the official England sponsors, Steinlager, when they ran a campaign in Britain during the 1992 Rugby World Cup with the tag line “Swing low sweet carry-out”. This was an obvious play on the words of the English rugby anthem “Swing low sweet chariot” and an alleged attempt to obtain benefits that an association with the English team might bring (Meenaghan 1996 p107). Rivals of the official sponsors have engaged in many different advertising and promotion activities. During the 1992 Barcelona Olympics, Nike held press conferences for Olympic athletes it sponsored and displayed large murals of members of the US basketball team on buildings in Barcelona, even though they were not the official sponsors. Curthoys & Kendall (2002) discussed Qantas’ campaign in the period preceding the 2002 Sydney Olympics, which involved a series of advertisements featuring famous Australian athletes and posters with slogans such as “Australia Wide Olympic Sale”. Although Ansett sued Qantas, the issue settled, though not before nearly 60% of the public believed Qantas was the official Olympic airline (compared with the 38% who correctly identified Ansett as the official sponsor). While the Australian public appeared confused, it is difficult to attribute their confusion to the advertising campaign alone, which did not appear either to breach any trademarks or imply official associations that did not exist. The fact that many alleged ambushes used media opportunities open to all advertisers suggests a need for greater co-ordination between media and event owners. In addition, event owners may need to be more circumspect in the levels of exclusivity they promise to sponsors.

POSSIBLE REMEDIES

12 There are several areas of the law which can assist event organisers and sponsors in controlling ambush marketing. None of them provides a complete answer and it is generally preferable that a combination of them should be utilised.

Trade mark infringement

Where an event organiser has a registered trade mark which is used to identify the event, for instance the Olympic Games symbol, and that trade mark is forged, the event organiser will have recourse under the Trade Marks Act 194 of 1993 and can institute civil court proceedings for trade mark infringement. Infringement of a registered trade mark entitles the proprietor of that trade mark to obtain an interdict restraining the offending conduct, payment of damages, delivery-up of all materials in the possession of the defendant featuring the offending mark and costs of suit. I shall refer to these forms of relief collectively as ‘standard relief’. Trade mark infringement remedies cannot, however, counteract ambush marketing by intrusion.

Passing off

The insignia and identifying features of an event can be protected under the common law if they are well known and enjoy a repute to the extent that persons seeing such insignia call the event to mind. In the event that these insignia are forged, a civil law claim can be made against the forger on the basis of so-called ‘passing off’ and the standard relief is available to the event organiser. Passing off cannot, however, be used to counteract ambush marketing by intrusion save where the manner in which the ambush marketer uses his own insignia suggests that there is some connection, such as authorisation, between the use of that insignia and the event or event organiser. This form of passing off may, however, be very difficult to establish.

Copyright infringement

13 Insignia used by an event organiser which are pictorial or graphic can constitute ‘artistic works’ under the Copyright Act 98 of 1978, while insignia and other written materials relating to the event which have some substance and embody in written form the result of independent thinking and creation can constitute ‘literary works’ under the Copyright Act. If these artistic or literary works are copied – either identically or in substance – by a forger such copying can give rise to a claim of copyright infringement and the copyright owner can claim the standard relief. Copyright infringement can also give rise to the commission of a criminal offence and the Copyright Act makes provision for severe penalties to be imposed. In the case of a first offence an infringer can be fined an amount of up to R5 000 for each article to which the offence relates, or be imprisoned for a period of three years, whichever is greater. For a subsequent offence these amounts are increased to R10 000 and five years, respectively. Copyright infringement cannot, however, occur in the case of ambush marketing by intrusion.

Merchandise Marks Act

An event organiser can have his trade mark or other insignia declared by the Minister of Trade and Industry to be a ‘prohibited mark’ under the Merchandise Marks Act 17 of 1941 and if such a mark is forged a criminal offence is committed. The sentences which can be imposed for offending under the Merchandise Marks Act are the same as those that can be imposed under the Copyright Act. The Merchandise Marks Act is of no assistance in preventing ambush marketing by intrusion.

Counterfeit Goods Act

Where an ambush marketer infringes a registered trade mark, infringes copyright, or forges a prohibited mark under the Merchandise Marks Act, action can also be taken against him under the Counterfeit Goods Act 37 0f 1997. This Act renders the forging of the aforementioned forms of property a criminal offence and imposes the same penalties as the Copyright Act. The Counterfeit Goods Act contains procedural provisions which are of great assistance to the owner of the right being forged and is, in principle, an effective tool for dealing with ambush marketing by forgery. It is, however, of no assistance in dealing with ambush marketing by intrusion.

14 Harmful Business Practices Act

The Harmful Business Practices Act 71 of 1988 makes provision for the Business Practices Committee to investigate certain practices which are considered to be contrary to the public interest in that they harm the relations between businesses and consumers, unreasonably prejudice consumers or deceive consumers and, if the committee decides that they are undesirable, it can make a recommendation to the Minister of Trade and Industry who can prohibit them. Once a prohibition has been issued the further conduct of the practices concerned will be unlawful and constitute a criminal offence. Ambush marketing by means of forging and intrusion could be affected by this legislation but the mechanism provided by the Act is cumbersome for purposes of dealing with ambush marketing.

Trade Practices Act

The Trade Practices Act 76 of 1976makes ambush marketing by forging involving the making of false representations, in principle, a criminal offence. This is in effect a manifestation of the passing off principle. The Act does not, however, impact on ambush marketing by intrusion save to the extent that a marketer may use his own trade mark or insignia to make a false representation, that is, to suggest that the use of his own trade mark has been authorised by an event organiser or sponsor.

Contract

An event organiser or sponsor can, and invariably does, regulate the use of his insignia by others with whom he deals. Such an agreement can stipulate the conditions subject to which the insignia are used and the restrictions placed on their use. The conditions and restrictions are, however, only binding on or applicable to persons who enter into a contractual relationship with the event organiser or sponsor or persons upon whom someone entering into a contract with an event organiser or sponsor is obliged to place additional restrictions. Generally speaking, an ambush marketer who perpetrates forgery has no contractual relationship either direct or indirect with an event organiser or a

15 sponsor. Contractual obligations or restrictions can also be placed on others by means of mass contracts, that is, contracts entered into with the public at large such as persons attending or participating in an event. An example of this is conditions to which the sales of an entrance ticket are made subject. For instance, spectators or participants could be prevented from displaying, advertising or promoting non-sponsors’ products. Contracts can impose a measure of control of ambush marketing by forging and by intrusion.

Regulatory measures

Legislation, whether national, provincial or municipal, may be capable of being utilised to prevent promotional activities taking place outside the venue where an event is to be held or air space above a stadium being used for advertising purposes and the like. The nature of the regulatory measures which may be capable of being taken will depend very much on the nature and location of the event and the attitude of the relevant regulatory authorities. These measures could be used primarily to prevent ambush marketing by intrusion but also ambush marketing by forgery to some extent.

AMBUSH MARKETING - GROWTH IN INDIA

Ambush marketing is usually employed at the times of big sporting events, where big corporations’ cash is on the names of the sporting events without paying the requisite fee, which constitutes the crux of “direct ambush advertising”. However, it is not sporting events only which become the mode of deploying ambush marketing. Of late, India has witnessed a spurt in the cases of ambush marketing even without any association with the sporting events.

The objectives of ambush marketing are twofold:

 To get maximum returns on the marketing buck and  To undermine the branding efforts of the rivals by stealing the attention, increasing the clutter and confusing the viewers.

Ambush marketing was first witnessed in 1984 Olympics and the 1996 Cricket World Cup which highlighted the concept in India. During the 1996 World Cup, although Coca Cola

16 was the official sponsor of the tournament, Pepsi ambushed the campaign by coming up with the tagline “nothing official about it”.

India as a nation thrives on cricket as its staple sport. To tackle the issue of direct ambush marketing in cricket tournaments, the ICC and BCCI came up with an agreement for the players in the year 2003, whereby the players were prohibited from appearing in advertisements for companies which were competitors for the sponsoring company. However, the contract just became the focus of a controversy and did not see the light of the day.

In recent times, the nation has been a witness to hoarding ambush advertisements. Jet Airways came up with an ad campaign saying “We’ve changed”! To ambush the campaign, Kingfisher airlines came up with “We’ve made them change” which was further ambushed by Go Airways saying “We’ve not changed. We are still the smartest way to fly”. The hoardings in this case, were placed in the city of Mumbai in a vertical sequence. The campaigns proved to be a funny sight to the city but a slap in the face of competitors as each competitor was feeding into the campaign of the other.

However, the latest war was between Hindustan Unilever’s shampoo brand “Dove” and Procter & Gamble’s shampoo brand “Pantene”. P&G launched its intriguing ad campaign for Pantene with the tagline “A mystery shampoo. Eighty percent women say it is better than anything else.” A few days later and before P&G could launch the new Pantene, Hindustan Unilever ambushed the campaign by placing an adjacent hoarding with the tagline “There is no mystery. Dove is the No. 1 shampoo.”, thus ambushing Pantene’s campaign.

In the examples described above, the ambushed company cannot avail of any specific legal remedy. The advertising campaign can only be considered an unfair trade practice, the remedy for enforcement of which is not very clear.

Ambush advertising can be trapped in the legal web by legislations like The Trade Mark Act, 1999 or The Copyright Act, 1957 when it is direct. However, the two examples described above, use the indirect ambush which cannot be trapped under any specific legislation and it leaves the underdog brand in a tight spot. Thus, the need of the present hour is for the Indian government to provide for some specific legislation which lay down

17 a prescribed behavior for advertisements. In the 2003 case of ICC vs. Arvee Enterprises and Philips, the Delhi High Court, while recognizing the alleged act as ambush marketing categorically stated that such acts were not in fact prohibited under current Indian law.

Ambush advertisements are an enticing and thrilling mode of advertising. Although ambush advertisement mars the campaign of the first brand, it ends up giving a lot of publicity to both the brands. The campaign sells like hot cakes amongst the media and captures the mindscape of the consumer in seconds. The ethical concerns over ambush marketing are a controversy in itself. Ambush marketing is just an aggressive behavior observed in the commercial arena but it definitely does not revolve around fair practices. Thus, there is a need to draw a line and where it should be drawn has to be decided by a prescribed mode of legislation.

Recently M S Dhoni, captain of Indian Cricket Team was in highlights for reasons relating to ambush marketing clause given in ICC Guidelines during cricket world cup 2011. He was a brand ambassador of Aircel Ltd who is directly in competition with an official sponsor of the world cup Reliance Communications. The contract said the players were prohibited from appearing in advertisements for companies which were competitors for the sponsoring company. However the contract just became the focus of a controversy and did not see the light of the day. In recent times the nation has been a witness to hoarding ambush advertisements. Jet airways came up with an ad campaign saying “we’ve changed”. To ambush the campaign kingfisher airlines came up with “we’ve made them change” which was further ambushed by go airways saying “ we’ve not changed. We are still the smartest way to fly”. The hoardings in this case were placed in the city of Mumbai in a vertical sequence. The campaigns proved to be a funny sight to the city when the opportunity was exploited by Indian railways intending to put down the entire airline industry itself when they said “ we will never change”. The campaign was put to anof ambush marketing where each competitor was feeding into the campaign of the other, where the competitors not only belonged to different service category but also had different clientele.

CONCLUSION

In the modern marketing environment ambush marketing is undoubtedly an undesirable practice which should be eradicated. This being so, a dynamic legal system should provide

18 adequate and effective means for counteracting and eradicating it. It is a unique problem and insofar as it concerns intrusion it is significantly different from problems with which intellectual property law has had to deal in the past. It therefore requires a novel and innovative approach and in essence the abuse of the trade marks principle espoused originally by the Association of Marketers provides the essence of the solution. It may be that the earlier draft needs to be toned down and tightened up so that its effect does not spill over into activities which are legitimate, but it provides the germ of a solution to the problem. This germ should be nurtured and brought into full blossom. If this happened South Africa would take the lead internationally in dealing with a worldwide problem, but one which would become very pertinent in this country when South Africa stages the Cricket World Cup and possibly the Soccer World Cup and Olympic Games.

To maximise the protection sponsors might receive from ambushing activities of all types, the normal commercial protections provided by trademark, copyright and passing off laws need to be supplemented by tighter contractual provisions between all of the parties involved in the sponsorship of an event. If event owners and sponsors develop tighter sponsorship contracts, they could foster more pragmatic expectations about what sponsorship can achieve. Activities not prohibited by law or the terms of the contract, would be legitimate marketing tactics; between event owners and prospective sponsors.

To assist the development of more specific contracts, event owners could also reduce the range of sponsorship options they offer. Increasing the exclusivity of sponsorship rights also represents an important means of minimising the potential for conflicting arrangements.

Ultimately, however, potential sponsors need to recognise that they will never be able to control rivals’ actions. If competitors embark on a campaign that could confuse consumers, marketers need also to recognise that any recourse they might have will be determined through the relevant legal systems.

REFERENCES

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