The FIFA World Cup 2014 - Ambush Marketing and the Law

What is ambush marketing? Legal controls Top tips example, Paddy Power constructed a What is ambush marketing? 270ft-long sign at the 2010 Ryder Cup Introduction Ambush marketing is very difficult to in Wales in a farmer’s field that could define, with everyone having their own clearly been seen from the first tee. The 2010 FIFA World Cup views as to whether an activity is below Earlier in the year Paddy Power had marked possibly the first the belt or commercially acceptable in also erected this sign outside, but a competitive market. It is helpful to visible from within, the racecourse for time ambush marketing distinguish between three types of the Cheltenham Festival. ambush. How these can be addressed really made headlines in Opportunistic ambush/advertising legally will depend on a number of Whether or not ‘opportunistic’ the UK. Bavaria beer's factors which we explore below. advertising, which reacts and refers to stunt at The Netherlands’ Ambush by association topical events, can genuinely be first match of the This occurs when the non-sponsor referred to as ambush marketing is up ambusher seeks to associate itself for debate. This advertising is often tournament involved with the event (or a participating team done in a humorous or tongue-in- beautiful Dutch models or player) without authorisation and cheek manner. Although undoubtedly consequently misleads the public into taking advantage of the public interest dressed in orange seeking thinking the ambusher is somehow in the event, it is less likely to be entry into a match connected with the event/team/player. misleading about the brand’s The most blatant examples will involve connection to the event. Oreo took this disguised as Danish fans, direct references being made to the type of advertising to lightning-quick only to reveal their event/team/player, and may involve levels at the 2013 , where a the use of protected trade marks. Big power cut at the stadium prompted its promotional intent once companies tend to be alert to such marketing team to produce an advert the match began. This restrictions and will seek to avoid featuring the image of an Oreo in dim infringements by making less direct lightning, accompanied by the line ‘You episode led to the South references. In the case of the 2014 can still dunk in the dark’. The advert African authorities making FIFA World Cup, this might be through went viral on before the lights references to Brazil, football imagery had even come back on. arrests, as well as the and other images evocative of the Zippo lighters were ‘gifted’ a similar global celebration of football. sacking of the TV pundit opportunity when the flame expired , who had The Walkers, and KitKat adverts during the 2014 Winter Olympic mentioned are all good examples of torch relay and was caught on camera apparently supplied the indirect associations that were created being relit by one of their lighters. They tickets to the girls: a with the 2010 FIFA World Cup, none of used social media to capitalise on this. which resulted in any legal Another tactic can be to poke fun at media storm ensued. proceedings. how vigorously an event protects its IP. There were further Ambush by intrusion This was seen at the London 2012 The incident involving the Bavaria girls Olympics with Oddbins, the liquor examples of high-profile appearing at the 2010 FIFA World Cup store, running adverts bemoaning the campaigns in the UK in was the sequel to a classic example of fact that “We can’t mention the event, ambush by intrusion by Bavaria at the We can’t mention the city, We can’t 2010 which raised 2006 FIFA World Cup. On that occasion even mention the year. At least they eyebrows – from Walkers' they gave away bright orange can’t stop us telling you about this:…” lederhosen, heavily branded with the followed by details of one of their World Cup of Flavours Bavaria logo, to The Netherlands’ fans products. They also introduced a 30% and Pepsi's 'Oh Africa' to attending matches. The 2010 Bavaria discount for customers who wore or campaign was more subtle – the displayed a variety of non-London 2012 KitKat's 'Cross your ladies’ orange mini-dresses bore only sponsor products when shopping in fingers' campaign. the smallest of Bavaria logos but, their off-licences. combined with an ad campaign in The Netherlands which featured the same Legal Controls It is yet to be seen what dress, they achieved a similar Advertising agencies are often at their exposure (which was of course then companies will come up most inspired when coming up with maximised due to the publicity ambush marketing campaigns. As it is with ahead of the start of achieved as a result of the arrests). not always straightforward in this area, Brazil 2014, but if you Normally an ‘intruding’ ambusher will rights holders’ lawyers also need to want to stay out of the seek to gain prominent brand get fairly creative with the law. Below exposure at the event, targeting the we consider each of the types of headlines and on the right audience in the stadia and in broadcast ambush mentioned above and look at side of the law, this note is media. This may occur within the the legal tools that are available to event’s area of control, as with the prevent them. here to help. Bavaria example, or just outside. For

Ambush by association association laws. Such laws are often Rule of thumb Various legal measures are typically demanded of bidding countries by the A useful rule of thumb is that if you deployed to deal with this type of international rights holder (in the case look at the advert and would almost ambush. The most blatant examples of of the World Cup, FIFA). The new laws expect to see an official sponsor logo ambush by association may involve normally go further than other pre- at the end/in the corner of the advert breaches of trade mark or copyright existing rights, preventing all because of the connection made to the laws (which will generally apply in one advertising which creates an event/team, it is likely to have form or another worldwide). 'association' between the advertiser crossed the line. and the event. This type of legislation What’s protected? On the other hand, if there is only a tends only to apply locally and will be FIFA's website asserts that all of the minor allusion or nod to the event, the time-limited. For example, for London following are protected in relation to risk will be much lower. In the context 2012, the 'London Olympic Association this summer’s World Cup: of Brazil 2014, this might be the use of Right' applied in the UK only and a football theme, something that > the Official Emblem (both the expired at the end of 2012. A similar references Brazil or a nationalistic graphic of hands forming the right is currently applicable in the UK theme. Use of one of these elements shape of the World Cup and in relation to the Glasgow 2014 alone is unlikely to be problematic, as the words ‘FIFA World Cup Commonwealth Games. FIFA cannot claim a monopoly over Brasil’) and the similar-looking In the UK, there is no anti-association any such element. However, if any of Fan Fest Logo right in respect of the 2014 FIFA World these elements are combined, for > the Official Mascot of an Cup. In Brazil, however, special example, a Brazilian theme which armadillo holding a football legislation does apply. Under the also features a well-known ex- ‘World Cup Law’, it is a civil and footballer, a complaint is much more > the Official Slogan (‘All in one criminal offence to associate, directly likely. rhythm’) or indirectly, any non-FIFA-authorised Context is also likely to be key: the trade marks, products and services > the Official Look (i.e. design) timing and placement can add to the with FIFA or the World Cup for the Element suggestion of an association, and even purpose of obtaining economic gain or the product and style of advertising > the image of the FIFA World Cup a marketing advantage. The penalty for will make a difference. If the product Trophy non-compliance with this law is a fine has no natural connection to football, or a prison term lasting between three > the Official Poster, which features and a football theme is introduced in a months and a year. an artistic representation of a very gratuitous way, the assumption football between two players Finally, event organisers will use may be that the brand is associated > a variety of terms including the contractual terms to seek to prevent with the World Cup. As such, a case-by words “FIFA”, “World Cup”, participants in the event (athletes, -case review will be needed. teams, officials etc) from allowing “Mundial 2014” and “Copa 2014” Ambush by intrusion their name or image etc to be used This will normally be controlled by all Some of the above terms (e.g. the within advertising during the event event organisers by a provision in the Official Emblem, “FIFA” and “World and/or for the purposes of ambush ticket terms and conditions which Cup 2014”) will be widely registered as marketing. The ticket terms and prevents the display of any commercial trade marks worldwide, but FIFA’s conditions will also normally prevent messages without authorisation in the registered right in terms such as the use of tickets for any commercial/ stadia. Contractual controls will also “World Cup” (by itself) will be much marketing purposes without the be deployed to ensure competing more narrow. For example, in the UK, permission of the event organiser. “World Cup” is registered by FIFA for a athletes and teams, officials and even narrow set of goods, including football To avoid action under any of the laws volunteers do not use their moment in boots and shirts. Nevertheless, the mentioned above, the key is to ensure front of the cameras to promote an cautious approach would be to avoid that the advertising does not mislead unauthorised brand. people into thinking there is a use of the term “World Cup” in Major events will often back up these connection between the brand advertising this summer, as trade contractual controls with special laws advertised and the event/team etc marks are not the only legal tool preventing unauthorised advertising when there is not. Every rights holder available for FIFA to deploy. (and often also street trading) in and is likely to take a slightly different around stadia. Under the World Cup If an ambusher avoids using the approach, and the laws in the relevant Law in Brazil, any advertising or event's , but country will obviously have a trading situated within a two-kilometre nevertheless creates the impression significant impact. However, in relation radius of a stadium on a match day that it is a sponsor of or is endorsed by to special anti-association rights, must have the prior approval of FIFA or or affiliated to the event, laws dealing these often haven't been considered by its nominees. This rules out stunts like with misleading advertising and unfair the courts. For example, the London those of Paddy Power at the 2010 competition may be relevant. In the Organising Committee of the Olympic Ryder Cup. It was a similar provision UK, the tort of is likely to be and Paralympic Games took no action under which the Bavaria girls were asserted. under the London Olympic Association arrested in 2010. Given the creativeness of ambush Right which reached a court, so it is marketing, many countries hosting unclear how widely they may be Opportunistic ambush/advertising major events create special anti- interpreted. How this is addressed will depend on the execution. Opportunistic ambushes have historically been more difficult images or footage in your celebrities, make sure you have for rights holders to tackle. Implied advertising (see list above) their permission references to the team/event in > Avoid advertising which > If undertaking any advertising in advertising are often negative in otherwise seeks to associate Brazil during the World Cup nature, making it hard to argue with or ambush the World Cup – ensure you’ve got the necessary consumers will be misled or confused, see highlighted “rule of thumb” authorisations required if you’re and it's likely to be more difficult to section above advertising within 2km of stadia assert special 'association rights' if the > Be cautious when using player only association is a negative one. or team imagery – in addition to If one of your competitors is Brands deploying this type of tactic permission from the copyright ambushing the World Cup and you may nevertheless receive complaints owner, ensure you have think this should be addressed: from the rights holder, even if legal permission from the player/ > Draw it to the attention of FIFA action is not available or pursued. team and, if the player/team is or the relevant national competing in the World Cup, be In relation to all forms of ambush, association aware that they are likely to be rights holders may deploy non-legal > However, given that ambush prohibited from contributing to tactics to fight back. Generating campaigns are normally short- an ambush campaign negative news stories about the lived, the time it will take to > Don’t use World Cup tickets in advertising may work if the brand is make a complaint means that it promotional activities sensitive to this, but many brands is unlikely to be processed > Remember that social media is which employ ambushing as a tactic before the campaign has run its also a form of advertising - brief will actually enjoy the additional course. Negative PR for the your digital teams/agencies publicity. Alternatively, rights holders competitor may well still be > If you’re planning on advertising might assert pressure on a ‘moral’ seen as a positive result though. in Brazil during the World Cup basis contacting senior executives to (whether or not in connection try to address the issue directly, and if with the World Cup), ensure you the brand is accredited for any reason, For further information on this subject, don’t infringe the “World Cup the threat of withdrawing accreditation please contact: Law” either by associating may well be the most effective tool directly or indirectly with the available. Alex Kelham event or by advertising within Senior Associate 2km of stadia without T: +44 20 7074 8211 Top tips authorisation E: [email protected] As mentioned above, adverts will need to be considered in the round to decide If you’re working on a campaign for an whether they infringe: consider official World Cup or national team content, timing, placement plans, the sponsor: nature of the product and of course the > Check the extent of the rights laws which apply in the relevant and make sure you’re operating territory. Use of a football or a within them. In particular, Brazilian/English/nationalistic theme sponsors of the national teams on its own is likely to be low risk, but are likely only to have rights to the more elements that are combined, the team and not the event the more likely action will be taken. more generally, so they won’t The scale of the campaign and size of have rights to use the World the brand/business behind the Cup logos (as opposed to the campaign is also likely to be a factor in relevant team logos) determining how high up FIFA’s to do > Ensure you’ve gone through the list the advert will be. appropriate approval process Unless you’re working on an official with the relevant rights holder 2014 FIFA World Cup Brazil sponsor (either FIFA or the relevant campaign: national team), and remember that approvals are likely to be > Don’t use any official Brazil required for all social media 2014 or national team logos, activations too protected terms, designs, > If you’re using players or other

© February 2014