To Be a Good Marketing Strategy

1 AMBUSH MARKETING A. Introduction 1.01 E. What Is Ambush Marketing? 1.15 B. A Free Spectacle 1.04 Ambush marketing: association and intrusion 1.19 C. Th e Sponsorship Market 1.06 Eff ectiveness of ambush marketing 1.20 Th e type of sponsorship arrangements 1.11 F. Types of Ambush Marketing 1.21 D. Guerilla Marketing 1.14 A. Introduction Ambush marketing is fast and transient. It also takes many forms: sometimes legal, 1.01 sometimes illegal. Th e more decisive the action taken against ambush marketers and counterfeiters the greater the value of sponsorship rights. After all, sponsors are not going to invest money in an event if they can take advantage of an association for nothing. Any type of event (or indeed anything else) can be the subject of an ambush marketing 1.02 campaign.1 Indeed, where an event is developing and there are no sponsors available, someone associating with the event can have a positive benefi t in terms of publicity. Yet once that event starts seeking sponsors it has to be able to ensure that those free-riders are no longer going to be able to make the association. Drawing favourable associations between goods or services and events is what marketing is all about. Th is is why ambush marketing is often, rightly or wrongly, simply thoughthttp://www.pbookshop.com to be a good marketing strategy. Th e wide ambit of ambush marketing, a concept discussed below, is most commonly 1.03 thought of in relation to sports events. Th e development of the laws in this fi eld has been on the back of major sporting events and, in particular, the Olympics. Th is is because the cost of hosting the Games could originally be met by relatively modest sponsorship and individual or governmental benefactors. Th e early Olympic events cost under US$500,000 to host,2 but as the cost escalated so did the need to protect what is otherwise a free spectacle. 1 Th e 2006 Sundance Film Festival was particularly aff ected: see S Zeitchik, ‘For Sundance, swag becomes a drag’, 25 January 2007, available at <http://www.variety.com/article/VR1117958114>. 2 CF Zarnowksi, ‘A Look at Olympic Costs’ (1992) 1 Citius, Altius, Fortius 16; according to Zarnowski in 1992 dollars the cost for the 1896 Olympics was US$448,000; for the 1908 Olympics, US$394,000; for the 1924 Olympics, US$518,000. After the Second World War the costs started to rocket out of control. 3 001_Johnson_01_(Part1_Johnson_01_(Part AA).indd).indd 3 110/29/20110/29/2011 33:42:21:42:21 PPMM Chapter 1: Ambush Marketing B. A Free Spectacle 1.04 Th ere is no legal protection for events as such.3 People who see an event cannot be prevented from reporting what happened and event organizers cannot stop anyone from observing an event from afar and making whatever use of it they choose.4 Th is is not to suggest that there have not been attempts over the years to try and claim property rights over an event or spectacle. A multitude of rights have been unsuccessfully relied upon to try and achieve this, including copyright,5 trespass,6 and breach of confi dence. But the traditional common law view is that it is diffi cult to attach any precise meaning to the phrase ‘property in a spectacle’. A ‘spectacle’ cannot, therefore, be ‘owned’ in any ordinary sense of that word.7 1.05 Nevertheless, the law of confi dence has developed signifi cantly over recent years and it appears that with strict controls photographs taken at a ‘private’ event can fall under a duty of confi dence.8 It has even been suggested that it is now possible to prevent the publication of exclusive stories under the laws of confi dence.9 If this is right then an event organizer can impose strict conditions10 of confi dentiality on anyone attending the event to ensure that no photographs are taken.11 Th is might protect broadcasting rights and the protection of certain images, but such protection is unlikely to extend to preventing attendees imparting information to the world about the event12 or, more importantly, making associations with the event. Using the law of confi dence to prevent ambush marketing is unlikely to be successful and, in many cases, would be of little value to the organizer or sponsors of the event. A sponsor wants as much coverage of an event as possible, saturation coverage being the ideal. Th is means that using the law of confi dence to limit access to an event is not in the sponsors’ interest and, to some extent, not in the interests of the event organizer.13 Sponsorship is not only important to the organizers of events, but it is also a very eff ective marketing tool for sponsors and so there is now a signifi cant sponsorship market. 3 In relation to other jurisdictions see A Wise, ‘A “Property Right” in a Sports Event: Views of Diff erent Jurisdictions’ (1996) 4(3) Sport and the Law Journal 63; and J Blais, ‘Th e Protection of Exclusive Television Rights to Sporting Events held in Public Venues: An Overview of the Law in Australia and Canada’ (1992) 18 Melbourne LR 503. Th ere were also proposals to the Gregory Committee to protect sporting events using copyright; see Report of thehttp://www.pbookshop.com Copyright Committee (Gregory Committee) (1951) Cmd 8662, [158]–[164]. 4 See BBC v Talksport [2001] FSR 6 (where an injunction is refused to prevent a radio broadcaster watching TV footage of EURO 2000 and commenting on it, but calling it ‘live’). 5 See R Arnold, ‘Copyright in Sporting Events and Broadcasts or Films of Sporting Events after Norowzian’ (2001/2) Yearbook of Copyright and Media Law 51, 57; where it is suggested that it could not be a dramatic work as it is not presented or consumed as ‘drama’ (but other major events might satisfy this requirement). 6 See Goodwood Racecourse Limited v Satellite Information Services [2004] EWHC 2364 (Ch), [51]–[53]. 7 Victoria Park Racing v Taylor (1937) 58 CLR 479, 496 (Aus); see the discussion of this case in Australian Broadcasting Corp v Lenah [2001] HCA 63. 8 Douglas v Hello! Ltd [2007] UKHL 21, [2008] 1 AC 1, see in particular at [123]. 9 R Arnold, ‘Confi dence in Exclusives: Douglas v Hello! in the House of Lords’ [2007] European Intellectual Property Review 339, 343. 10 See para 9.04. 11 But as Richard Arnold QC asks, what of mobile phones incorporating cameras? R Arnold, ‘Confi dence in Exclusives’ [2007] European Intellectual Property Review 339, 343. 12 Douglas [2007] UKHL 21, [2008] 1 AC 1 [112]. 13 See discussion of broadcasting rights, paras 7.32–7.45. 4 001_Johnson_01_(Part1_Johnson_01_(Part AA).indd).indd 4 110/29/20110/29/2011 33:42:21:42:21 PPMM C. Th e Sponsorship Market C. Th e Sponsorship Market Th e sponsorship market is huge. It is predicted that the value of worldwide global sponsorship 1.06 in 2010 was US$46.3 billion (a 5.2 per cent increase over 2009), the North American share of this being US$17.2 billion and that of Europe being US$12.9 billion.14 Th is growth is attributable to the increased awareness of both sponsors15 and sponsored. Unsurprisingly, the primary reason that companies sponsor events is to fulfi l their communica- 1.07 tion and strategic objectives and to fi t their broader marketing strategy,16 although it is also sometimes used as a defensive strategy to prevent competitors sponsoring the event.17 Th e other reasons for sponsoring an event are often self-evident. In a study of Guinness’s reasons for sponsoring the 1999 Rugby World Cup the company indicated they wanted to increase consump- tion in priority markets in the lead-up to, and during, the event; to be perceived as the dominant sponsor of the event; and to the develop the brand, in particular, in relation to a young demo- graphic. It turned out that 94 per cent of the public perceived Guinness as the dominant sponsor and sales over the period increased by up to 37 per cent in some countries.18 Another example of the potential benefi ts from sponsorship is Cornhill Insurance who 1.08 invested £2 million per year to sponsor English test cricket. Th e public recognition of the brand over the fi ve-year sponsorship period increased from 2 per cent to 21 per cent and sales increased by between £15 million and £20 million.19 Th e cost of doing this by conventional advertising was estimated to be £50 million. Of course it can go the other way as well. Roy Keane, the former Manchester United and Ireland captain, was paid (reportedly £500,000) to front the 7-UP campaign in Ireland during the lead-up to the 2002 World Cup. However, when Roy Keane fell out with the Ireland manager and was sent home, 7-UP felt the wrath as its campaign posters were defaced and its specially produced cans boycotted.20 As the signifi cant benefi ts associated with sponsorship (albeit with an attendant risk) became evident to marketing departments its antithesis—ambush marketing—was certain to develop. Th e rise of ambush marketing was a result of the increasing sophistication of sports 1.09 sponsorship. Th e sponsoring of events and athletes probably began when competitions started. Th e Olympics present a prime example. Th e Games have had some form of sponsorship from their very beginningshttp://www.pbookshop.com21 and there were some early disputes about people claiming links with the Games.22 Th e 1950s and 1960s saw a substantial increase in the number of sponsors, 14 IEG Sponsorship Report (22 December 2010).

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