inbrief

Ambush Marketing

Inside What is Ambush Marketing?

Examples of Ambush Marketing

How does UK law currently protect against Ambush Marketing?

Olympic Games

Steps to Counter Ambush Marketing inbrief

Introduction What is Ambush Marketing? and also the 2012 in particular). With businesses at times paying Up to now, where event organisers and their Ambush marketing is an attempt by an many millions to associate themselves official sponsors have felt aggrieved by the unauthorised party, through deliberate marketing ambushing of events by third parties, they with an event it is not surprising that activity, to take advantage of the high media have generally sought redress through the their competitors engage in ‘ambush profile of an event, team or individual at the more traditional forms of marketing’. expense of another company’s (usually a rival’s) protection, such as , trade mark official association with them, without paying any infringement or copyright infringement. licence or sponsorship fees.

The International Olympic Committee (“IOC”) has Passing Off defined ambush marketing of the Olympic Games In order to ground an action in passing off, as “all intentional and unintentional attempts broadly, the event organiser would need to show to create a false or unauthorised commercial all of the following: association with the Olympic Movement or the Olympic Games”. • it has established a reputation or goodwill in the event in question; Ambush marketing is clearly a very effective marketing tool for brand owners as it attracts • the third party has made a misrepresentation consumers at the expense of competitors and at which has led to confusion in the minds of the little cost to the brand owner. However, it also has public as to whether there is a connection with damaging effects, not only for those ambushed the event organiser; and competitors, but also for the integrity of the event, • the event organiser has suffered or is likely to team or individual concerned and their potential suffer damage. to attract future sponsors. Registered Trade Marks Where the event organiser has a registered trade Examples of Ambush Marketing mark for the name of the event itself (eg, World At the 1984 Olympics in Los Angeles, Kodak Cup, London 2012, etc) or logos, mascots, sponsored TV broadcasts of the Games, as well expressions, etc associated with it, and that trade as the US track team, despite Fuji being an official mark or a similar mark has been used by a third sponsor of the Games themselves. party in its advertising, the event organiser may be able to bring action against the third party for Visa was an official partner to the 1994 trade mark infringement. Lillehammer Winter Olympics. released TV commercials featuring the strap line; Copyright “if you are travelling to Norway this winter, you will need a passport but you don’t need a visa”. The event organiser may have created a logo to represent the event. If this logo is sufficiently At the 1996 Atlanta Olympics, Nike (not an original to attract copyright, reproduction of the official sponsor) handed out Nike flags for fans logo by an ambush marketer may also constitute to wave at cameras. Nike also bought up all the copyright infringement. outdoor poster sites in Atlanta and set up its own Nike village next to the official Olympic sponsor’s Advertising Codes and CPRs village. Event organisers may also have recourse to the advertising self-regulatory regime, the CAP and BCAP Codes to combat ambush marketing. How does UK law currently protect These Codes require (among other things) that against Ambush Marketing? all adverts are honest and truthful and that they There is currently no specific legislation in the should not be misleading. UK, which outlaws ambush marketing per se Ambush marketers may also fall foul of the (although specific legislation has been brought Consumer Protection from Misleading Marketing into force to prevent unauthorised commercial association with the Olympic Games in general inbrief

Regulations 2008 (the ‘CPRs’) if they constitute an • use indicating the kind, quality, quantity, but that they are contractually bound to take “unfair commercial practice”, due to them being intended purpose, value or other characteristics action against ambush marketers within a set misleading. of goods or services; period of time after such activity is brought to their attention. Recourse to the Codes and the 2008 Regulations • editorial/journalistic use; will be of limited value to brand owners wishing • Event organisers and sponsors should take • incidental inclusion; to take action themselves as both involve making steps to minimise the effect of online ambush complaints to the Advertising Standards Authority/ • exhaustion of rights; marketing, which could be carried out through Trading Standards for them to investigate activities such as the use of similar website • continuous use; themselves. However, some other jurisdictions in names or unauthorised linking or framing to the EU (eg, Ireland, Germany, etc) provide for a • no association suggested. the official website or to the sponsor’s website. direct right of action for breach of their equivalent • Event organisers and sponsors may want to versions of the 2008 Regulations and so event consider mounting official sponsor awareness organisers should bear this in mind when faced Steps to Counter Ambush campaigns so that the public know which with an ambush campaign which spans more Marketing sponsors are official. Indeed, sponsors may than just the UK. There are a range of practical steps which event seek to contractually oblige event organisers organisers and sponsors may take in order to help to run such campaigns and ensure that they prevent ambush marketing occurring including the are prominently identified as the only official Olympic Games following: sponsors in all literature and advertising The Olympic Games present a number of legal surrounding the event. • In order to prevent ambush marketing pitfalls for the uninformed promoter. The Olympic occurring in and around the stadia • Sporting bodies are increasingly cracking Games symbol is one of the most protected themselves, event organisers may want down on the running of unofficial promotions logos in the world and has been registered as a to consider negotiating contractual terms which offer tickets to sporting events as prizes Community trade mark in every category of goods obliging stadia owners to take a proactive in competitions. For example, only official and services. In addition, the Olympic five ring approach to preventing ambush marketing, sponsors and partners of the World Cup are symbol and the Paralympic symbol, the Olympic by fully controlling advertising in the vicinity. permitted to run competitions or promotions and Paralympic mottos and the words “Olympic”, Organisers could, for example, oblige owners in relation to tickets for the World Cup. The “Olympia”, “Olympiad”, “Paralympic”, to hand over stadia as clean sites (meaning same is true for the Olympics. “Paralympia” and “Paralympiad” are given special that they would have to be cleared of all protection under the Olympic Symbol (Protection) advertising by all unofficial sponsors), to Act 1995 (the “1995 Act”) as amended by the rename the stadia for the duration of the event London Olympic Games and Paralympic Games or to control access to the stadia grounds, For further information Act 2006 (the “2006 Act”). including the air space above. on this subject please contact: The 2006 Act extends the scope of the 1995 Act • Event organisers could also buy up all of the to prevent any unauthorised use in the course of Dominic Farnsworth billboard and other advertising space in the trade of any representation in a manner likely to Partner vicinity of the event and then resell only to create an association between goods/services and T + 44 (0) 20 7074 8088 official sponsors. Indeed, sponsors may wish the London Olympics. Use of the words “games”, [email protected] to contractually oblige event organisers to do “two thousand and twelve”, “2012”, “twenty this. twelve”, “gold”, “silver”, “bronze”, “London”, Pauline Dore “medal”, “sponsor” and “summer” may be • Event organisers may impose obligations on Senior Associate taken in account by the Court when considering media organisations to restrict advertising and T + 44 (0) 20 7074 8224 whether there has been any infringement. promotion during broadcasts or webcasts to [email protected] official sponsors. The restrictions could be The 1995 and 2006 Acts provide for a number of extended to cover the period immediately prior defences including: to or after the sponsored event. • honestly made statements; • Event organisers should put in place effective • registered trade mark/design or other licensing arrangements. Sponsors should unregistered private rights; ensure that event organisers not only own and have made effective licensing arrangements • use of a person’s or business’ own name or for the relevant intellectual property rights, address; inbrief

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