Journal of Rights Vol 8, September 2003, pp 375-388

Ambush Marketing−The Problem and the Projected Solutions vis-a-vis Intellectual Property Law−A Global Perspective

Sudipta Bhattacharjee The National University of Juridical Sciences,N U J S Bhawan 12 L B Block, Sector-III, Salt Lake, Kolkata 700098

(Received 11 May 2003)

The problem of ambush marketing has been plaguing the organizers of various sporting and other events for the last four to five years. Due to the enormous financial losses caused by ambush marketing, the sponsors have been reconsidering the decisions to shell out astronomical sums for sponsoring various events. This paper analyses in great detail the concept of ambush marketing to its genesis, the various famous incidents of ambush marketing and the consequential losses and evaluates the existing intellectual property regime in combating this menace. It also analyses the various sui generis legislations framed by countries like and Australia to combat ambush marketing and tries to cull out a suitable anti-ambush marketing legislative policy for the Indian scenario.

‘Ambush marketing’ has assumed great legitimate sponsorship, their claims often importance in the modern advertising and provide no basis for legal action. This marketing terminology. In 1996, soft article examines instances of alleged drinks giant, Coke, paid a fortune for the ambushes and how these fit within a right to call itself the official sponsor of wider legal framework. Ambushing the World Cup. Rival promptly appears to encompass legitimate launched a massive advertising blitz, competitive behaviour to passing-off and based on the catch line: Nothing official misuse of . There is absolute about it. The Pepsi campaign captured the dearth of legal scholarship on this aspect, public imagination and Coke, the official especially in India. The author has made a sponsor, lost out. The above incident sincere attempt to plug that vacuum. highlights the subtlety and potential of Ambush marketing, sometimes referred ambush marketing in hijacking the to as parasitic marketing, has been consumer’s mind. Although marketers broadly defined as "the unauthorized have described ambush marketing as a association of a business or organization parasitic activity that encroaches on with the marketing of a particular event ______— gaining benefit for the marketing right E-mail: [email protected] or licensing fee applicable in order to be

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associated with an event, such as a an event of major public interest. sporting event.”1 lawyer, Stephen Essentially, the ‘ambusher’ sponsors Townley, explains that ambush marketing some lesser element attached to the can be divided into two broad classes of overall event and exploits this association activity: through major promotional effort. In the 1. Activities traditionally considered case of the , while the piracies - these will usually have a clear- official worldwide sponsor is sponsoring cut remedy in law. They are activities that a particular top category at a price of $20 clearly constitute infringements of the to $25 million, the so-called ‘ambusher’ property rights in an event, for example, sponsors some lesser category such as a unauthorized use of a registered event federation or team (such as the British logo on merchandise, or false claims to be swimming team)5. official suppliers of a particular team2. 2. Other activities - more subtle Purchasing Advertising Time Around practices for which the remedy is less Relays of the Competitor's Event clear-cut or may not even exist3. A company wishing to deny a competitor the full benefits of their event Ambushing Strategies or broadcast sponsorship can engage in ‘Ambushers’ are becoming ambush marketing by buying advertising increasingly astute at developing ways to time in the slots around television relays circumvent legal attempts to control non- of the event6. sponsor marketing strategies. Elaborating on the second category noted above, Engage in Major Non-sponsorship 7 several methods of ambush marketing Promotions to Coincide with the Event could be identified if one accepts the For example, organize contests to send broadest meaning of the term: consumers to the event, placement of hoarding or booths at strategic locations Sponsor the Broadcast of the Event during the event, etc. The so-called ‘ambusher’ sponsors the broadcast of the event. The benefits of Pourage Agreements this approach are obvious when one The sale of products at events is a considers that the media audience for useful and high profile way for certain most events is much larger than the on- types of potential sponsors (usually soft site audience. In such an instance the so- drinks and fast food suppliers), to both called ‘ambusher’ is seeking a perfectly raise their profile in association with a legitimate sponsorship opportunity in its and also to sell products8. own right4. Corporate Hospitality and Ticketing Sponsor Subcategories within the Event This method consists of buying up and Exploit this Investment Aggressively tickets for the event and offer hospitality This is a widespread and often very packages, which are not being sanctioned cost-effective method of association with by the rights owners9.

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Other Ambushing Strategies unethical sponsorship practice15. In addition to the above list of Ehrenberg suggested that, advertising and strategies, many ‘ambushers’ have sponsorship are one of a range of adopted highly creative and inventive reinforcers designed to reassure strategies to suggest their involvement purchasers and increase the probability of with major global events10. Often, repeat-purchase behaviour16. To sum up, ‘ambushers’ will rely on a number of the existing marketing communication these methods at the same time, with literature, sponsorship is a commercial clever and highly effective results. At the agreement or arrangement, whereby a 1994 Winter Olympics, for example, sponsor pays a certain sum of money or , which had been provides certain products, services or replaced as an official sponsor by Visa, other facilities to the sponsored party, in marketed itself worldwide with the motto: return for which the sponsor is granted “If you are traveling to Lillehammer, certain rights of association (official you'll need a passport, but you don't need designation) with the sponsored party a Visa”11. Survey results indicated that which culminates into improved strategies of this sort are highly effective. perception of the brand17. In the words of One research group asked consumers less Crimmins: “sponsorship improves the than a month after the 1996 Atlanta perception of a brand by flanking our Olympics to name half-dozen companies beliefs about the brand and linking the associated with the Games12. Some 54% brand to an event or organization that the of respondents named American Express target audience already values highly.”18 and 72% named Visa. While to the Ambush marketing spoils this chance of viewing public, Visa might seem to have improved perception. Not surprisingly, won this battle for media supremacy, the the organizers of major sporting events victory seems less impressive once it is have all expressed concern that noted that American Express did not competition of this sort will diminish spend $40 million for the privilege of their ability to retain top paying sponsors, being associated with the Games and Visa thus jeopardizing their ability to fund did13. These results are similar to those these events19. It is clear then, at least in unveiled in a survey conducted after the the eyes of those who sponsor major 1994 Winter Games, in which 52% of sporting events like the Olympic Games, respondents inferred that American that ambush marketing strategies are Express had an association with the more than just a merely irritating, they Games. Again, American Express had not represent a substantial threat to economic sponsored the Games14. interests20. To appreciate the true nature of ambush marketing, and thereby deriving a Intellectual Property Regime vis-a-vis strategy against it, it would be relevant to Ambush Marketing understand the nature of sponsorship, The existing intellectual property since ambush marketing is nothing but an regime is efficient enough to deal with

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the first kind of ambush marketing. To be rightability in the various logos and more specific the law of trademarks and symbols associated with the event to some extent the law of copyright can through legislations26. be used in this regard.Trademarks can be The following are the examples of the seen as serving two main purposes, to ambush marketing practices which are protect business goodwill , and to protect prima-facie unlawful. consumers from deception, that is to —Commercial use of rights, benefits and prevent the buying public purchasing privileges without authorization. goods or services in the mistaken belief —Clear attempt to associate with the that they originate from or are provided event without a licence. by another trader21. —Unauthorized commercial use of That being the case, any unauthorized copyrighted photographs, illustrations, use of any kind of logo or symbol film or satellite feed. associated with any event, will be a —Use of words, symbols or pictorials straightforward case of confusingly similar to the event. infringement. An important case in this —The production of print publications or regard would be the case of Arsenal television features about the event by Football Club plc v Mathew Reed22. The non-rights holders for commercial football club sued Reed. He was selling gain, beyond that which is considered club merchandise unofficially without appropriate for news and editorial licence from the club. The merchandise coverage had the club logo on it, which was —Producing or selling counterfeit trademark protected. Reed argued that he merchandise. was not using the Arsenal logo that was —Sampling or selling competitive on his merchandise as a trademark for his products in the event venues. goods (that is to indicate origin), but —Registering website domain names merely as badges of allegiance. Reed’s with the Internet to profit using famous arguments were rightly rejected23. names. Coming to the issue of copyright, it is —Downloading copyrighted satellite feed clear that if the logos or symbols of the official Olympic broadcast and associated with an event can be transmitting it via the Internet without copyrighted, the degree of protection that proper authorization. can be offered against any unauthorized —Unauthorized use of athlete use would be much higher. Under the appearances, images or likeness for Indian Copyright Act, a special advertising purposes during the event. legislation or ordinance can be passed24 declaring something to be These activities can reasonably be copyrightable25. As will be discussed in combated through the trademarks or the subsequent pages, countries like copyright law and to some extent the law Australia and China have also resorted to of and hence are not of much the same strategy of imputing copy- concern.

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‘Ambushers’ are becoming increas- Cola the right to advertise during ingly astute at developing ways to broadcasts of NHL games. The NHL circumvent legal attempts to control non- gave this right to Molson Breweries29. sponsor marketing strategies. At this The Canadian Broadcasting Corporation point, a few judicial decisions around the (CBC) broadcasts at least one NHL game world in this regard are discussed. nation-wide in Canada every Saturday To date, there have been few reported night during the regular playing season. cases dealing specifically with ambush Molson granted Pepsi-Cola, Coke’s main marketing. The most important of them is competitor, the right to advertise Pepsi’s the Canadian case of National Hockey soft drinks during broadcasts. Pepsi-Cola League (NHL) et al v Pepsi Cola Ltd27. advertised its product by means of a Although the case deals with a passing contest called “the Diet Pepsi four million off claim, it does indicate just how far dollar pro-hockey playoff pool.” The case competitors are able to go before the at trial arose primarily out of Pepsi's courts see fit to view their actions as advertising campaign and the promotional misleading and deceptive⎯hence material related to that campaign (the deserving legal penalty. It thus merits ‘Contest’)30. As part of its HNIC some consideration when determining advertising, Pepsi sponsored a how best to deal with the problem. programme called ‘Coach's Corner’, Although the case is Canadian, the legal which was televised during the Stanley- principles relating to passing off in Cup playoff games, at half time. This Canada are substantially the same as programme featured well-known sports those in India. At that time, the NHL celebrity, Don Cherry, being interviewed consisted of 21 ice hockey clubs and had by a CBC sports commentator31. Don an affiliated services company, the Cherry is well known throughout Canada Services Ltd and is viewed by many as the voice of the (NHLS). An important source of revenue NHL. The advertisements were set in a for the NHL comes from the sale by hockey dressing room with Cherry NHLS of licences to the producers of a explaining the contest to three men variety of products to display the league's dressed as hockey players. In one of the registered trademarks on or in television advertisements, the audio conjunction with their products and to portion consisted of a monologue by claim affiliation in one way or another Cherry in which he stated: with the NHL and its member teams. “Just cool it! Just cool it! There's $4 NHLS agreed with Coca Cola Ltd that its million to be won in Diet Pepsi's product would be designated the official Playoff Pool. soft drink of NHL. In consideration of the Now look here! Check under the rights it attained under the agreement, caps of Pepsi and 7-Up products! If, Coca Cola agreed to pay the NHLS for instance, it says “Calgary in 6” approximately $2.6 million28. This and they win the Playoff finals in 6, agreement did not, however, give Coca you could win $10,000, $10.00 or

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free Diet Pepsi. Now, hit the ice you plaintiffs and the defendant37. In guys! Play Diet Pepsi's $4 million deciding the issue, the Court relied Playoff Pool. on the House of Lord's decision in Can you believe these guys?”32 General Electric Co Ltd v General At trial, the position taken by the NHL, Electric Co38. in which it was held, as plaintiffs, was that the contest and on the issue of the likelihood of the particularly the television advertisements public being deceived, that the featuring Don Cherry, were “likely to tribunal of fact must not only convey to the public a false impression consider the evidence but also use that the NHL and its member teams its own common sense. Applying approved, authorized, endorsed or were in this test, the Court found that some manner associated with the contest, although Pepsi's actions did clearly and thereby, Pepsi's products.”33 constitute ambush marketing39 there The NHL contended that Pepsi was was nothing in law that could be guilty of the tort of passing off because done to protect either Coke or the the television commercials in particular NHL in its endeavours to protect “conveyed a false impression to the Coke from its main competitor40. public that the NHL, in some form, To date, NHL v Pepsi is one of only a approved or was associated with the few judicial decisions in which a court of contest.”34 Pepsi, in response, argued that law has dealt specifically with a claim of its actions constituted little more than “an ambush marketing. Although the case is aggressive but legitimate marketing Canadian, and hence not necessarily campaign.”35 In examining the tort of binding in India, it does send a clear passing off the Court held that: message to those wanting to undertake Not every kind of connection tactics similar to those used by Pepsi. As claimed amounts to a passing off. Davis notes, the case also demonstrates There must be a representation that just how reluctant the courts can be to the defendant's goods are connected find a violation of existing law unless with the plaintiff in such a way as there has been a clear "trademark and would lead people to accept them on trade name infringement" and this the faith of the plaintiff's infringement is part of the overall reputation36. The question here is marketing campaign41. whether the advertising went In MasterCard International beyond that which was legitimate Incorporated v Sprint Communications and misrepresented to the public Co & ISL Football AG42, is one of the that one or more of the plaintiffs rare decisions where ambush marketing approved, authorized or endorsed was the subject of a court injunction. In the contest, and thereby, by connection with its sponsorship of the implication, the defendant's 1994 World Cup, MasterCard received products, or that there was some the exclusive right before and during the business connection between the competition to use World Cup logos on,

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and in association with, “all card-based Cup”. ICC had already applied for the payment and account access devices”. Registration of words “ICC Cricket Sprint Communications was also World Cup South Africa 2003”. The involved as a backer of World Cup as an grounds raised were inter alia of passing official partner, a category that was off and ambush marketing. The Court neither as extensive as that of a sponsor rejected this on the grounds that the logo nor as costly. Sprint's exclusivity was in of ICC has not been misused and hence the field of long distance there was no scope for any assumption telecommunications. Sprint began amongst the purchasers of the defendants’ marketing pre-paid telephone calling goods that there is any connection cards both in the US and Europe bearing between the defendants and the official World Cup logos, despite MasterCard's sponsors of the event46. A saving grace strong objection. In the litigation that would be the case of ICC Dev v EGSS47, ensued in the Federal Court in New York where an injunction was granted against City, MasterCard established that Sprint's the misuse of the ICC logo by the use of World Cup logos on its telephone defendants. The logo was held to be an cards infringed on MasterCard's category artistic work of the Indian Copyright Act. of “card-based payment and account These cases demonstrate that the access devices”, even though the intellectual property law has not telephone cards were not functionally the traditionally been well suited for dealing same as MasterCard's cards. The Court with implicit associations between an held that consumers would, on seeing the advertiser and a major sporting event. Sprint card bearing a World Cup logo, The law of passing off has been mistakenly assume that Sprint had rights increasingly attempted to be used to in a category that, in fact, belonged 43 combat the second category of ambush exclusively to MasterCard . marketing practices. However, the courts have found that passing off is not well Indian Scenario suited for dealing with implicit Coming to the Indian scenario, recently associations between an advertiser and a the plea taken by International Cricket major sporting event48. The law of Council (ICC) against Britannia biscuits passing off has been settled through a for ambush marketing was outright catena of cases49. And it becomes obvious rejected by the Delhi High court which that without proving misrepresentation refused to recognize ambush marketing as the action of passing –off can’t be taken50. a cause of action44. Again in the case of ICC Development International Ltd In fact, in the Arsenal case discussed (ICCDIL) v Arvee45, where a suit filed for above51, an alternative action for passing an injunction against the defendants using off failed as Arsenal failed to show any the slogans “: Diwali Manao evidence of any damage or any actual World Cup Jao” and “Buy a Philips confusion caused by the merchandise of Audio System, win a ticket to World Reed52.

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Hence it becomes very clear that the Section 19 provides that the Registrar current intellectual property regime is of Trademarks shall not register under the only partially successful to combat Trademarks Act 1995 a trademark that ambush marketing and hence a sui contains or consists of any of the generis approach has to be taken and new following marks, or a mark so nearly laws to be framed in the lines of South resembling any of those marks as to be Africa, Australia, etc. The next focus will likely to be taken for that mark: be on the special anti- ambush marketing (a) The Olympic motto; legislations in different countries. (b) The Olympic symbol; (c) Where an artistic work of an The Normative Structure Against Olympic torch and flame is prescribed for Ambush Marketing in Various the purposes of section 2A - the artistic Countries work The first ambush marketing specific (d) Where the design in relation to an legislation was devised by the Australian artistic work is registered under this Act, parliament, which is the Olympic Insignia the artistic work. Act. Protected Olympic Expressions The Australian Scenario This is a new chapter inserted by the Olympic Insignia Act 2001 Amendment Act which restricts the On 29 October 2001 the Olympic use of the following expressions: Insignia Protection Amendment Act 2001 (a) Olympic; (2001 Amendment Act) came into effect (b) Olympics; in Australia. This Act amended the (c) Olympic Games; Olympic Insignia Protection Act 1987. (d) Olympiad; and The Act provides: (e) Olympiads57. —The Australian Olympic Committee These expressions are said to be (AOC) is the owner of copyright in the “protected Olympic expressions”. Under Olympic symbol; Section 36, a person, other than the AOC, —The AOC is the owner of certain must not use a protected Olympic Olympic designs; expression for commercial purposes. This —The Olympic motto, the Olympic section does not apply if the person is a symbol and certain other Olympic licensed user, and the use is in accordance images must not be registered as with the terms and conditions of the trademarks; and licence. —Commercial use of certain Olympic The AOC may license a person to use expressions is prohibited, unless the all, or any one or more, of the protected user holds a licence granted by the Olympic expressions for commercial AOC54. The Act provides for special purposes (Section 38). Section 74 of the copyright55 and design56 protection to Act provides that chapter 3 has effect, in the and designs. addition, to any contract:

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(a) That relates to the use of a protected the legislation was enacted. The Olympic expression for commercial Merchandise Marks Amendment Bill, purposes; and 2002,defines ambush marketing and (b) To which any of the following is a authorizes the Minister of Trade and party: Industry to protect certain events, e.g. (i) The IOC; major sporting events59. (ii) The AOC; Hence, it becomes very clear from the (iii) The organizing committee for perusal of the normative structures summer or winter Olympic games. against ambush marketing all over the world that the intellectual property Implications of the Act and the 2001 regime is not sufficient to tackle ambush Amendment marketing. Sui generis legislations have The obvious implication of the 2001 to be framed to combat ambush Amendment for companies, businesses marketing. It is humbly submitted that the and individuals is that it is now necessary Delhi High Court judgment, refusing to to enter into a licence arrangement with accept ambush marketing as a ground for the AOC if they wish to make relief, is a retrograde step. Sooner or later, ‘commercial use’ of the words ‘Olympic’, this vice of ambush marketing has to be ‘Olympics’, ‘Olympic Games’, curbed, preferably through legislation in ‘Olympiad’, and Olympiads" (protected the South African model. Olympic expressions) or of an expression Prior to the , it was so closely resembling a protected threatened by the official sponsors that Olympic expression as to be likely to be anyone who goes to South Africa, under mistaken by a reasonable person for a the “Britannia Khao, World Cup Jao” protected Olympic expression. However, offer, might end up in trouble, because of this does not mean that the Olympic hotel the extremely strict, anti-ambush or the Olympic fruit market will need to marketing penal laws there60. obtain a licence from the AOC to continue trading58. The Legislation limits Conclusion the restriction to ‘commercial use’ which After a careful perusal of the preceding is defined clearly. pages, the author proposes to frame a broad policy outline for an anti-ambush Law in South Africa marketing legislation in India. The South African legislation has been enacted as a preventive step in the wake Policy Outline of the cricket world cup in 2003. Since ⎯‘Event’ means any conference, there is an absolute paucity of secondary exhibition, show or competition of a materials in this regard the statements of cultural, religious, sporting, objects and reasons of the legislations recreational or entertainment nature have been excerpted below to which is: comprehend the perspective with which (a) Held or to be held in public;

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(b) Likely to attract the attention of the the preparation or training of the public or to be newsworthy; and participants by sporting or other (c) Financed or subsidized by organizations and institutes, statements commercial sponsorship, and includes about sports-related personal services any broadcast of such conference, and statements about supply or goods exhibition, show or competition. or services to past teams or games. —Prohibit the use of certain expressions, This policy also provides that use of such as ‘Olympiad’, ‘Olympic’, the protected expressions in connection ‘Sydney 2000’ and ‘Share the Spirit’, with the provision of information or in the context of Olympics; which are for purposes of criticism or review will closely associated with the event. not be enough to suggest a sponsorship Licences to use the expressions should or sponsorship-like support. be granted by the organizers. Registrar —The policy outline bestows ownership of Trademarks shall not register under of the copyright and the design of the the Indian trademarks law, a trademark event symbol upon the organizers. that contains or consists of any of the —The implementation has to be assigned marks closely associated with the to a ministry (or a new one be created) event, or a mark so nearly resembling and the concerned ministry may, after any of those marks as to be likely to be investigation and subject to such taken for that mark. This is not going conditions as may be appropriate in the to affect the persons who are circumstances, by notice in the Gazette organizing the events, as they would be designate an event as a protected event specially provided with the trademarks and in that notice stipulate the date (i) under the sui generis law. with effect from which the protection —Restrict the use of the expressions commences; and (ii) on which the closely associated with the event; for protection ends, which date may not be example in the context of Olympics later than two months after the following expressions should be completion or termination of the event. restricted: (a) Olympic;(b) Olympics; The minister of the concerned ministry (c) Olympic Games;(d) Olympiad; and may not designate an event as a (e) Olympiads. These expressions are protected event unless the staging of said to be ‘protected expressions’. A the event is in the public interest. For person, other than the organizers, must the period during which an event is not use a protected expression for protected, no person shall use a commercial purposes. This does not trademark in relation to such event in a apply if the person is a licensed user, manner, which is calculated to, achieve and the use is in accordance with the publicity for the trademark and thereby terms and conditions of the licence. to derive special promotional benefit —Specific exemptions apply to from the event, without the prior statements about past participation of authority of the organizer of such people in the event, statements about event. For the above purposes, the use

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of a trademark includes: (a) any visual 2 Examples of this type of infringement are representation of the trademark upon numerous. A recent US example is found in the case of Host Communications v Kellogg or in relation to goods, (b) any audible (1994), unreported, United States District reproduction of the trademark in Court of Kentucky, No. 94-26, per Wilhoit J, relation to goods, or (c) the use of the See also MasterCard International Inc v Sprint trademark in promotional activities, Communications Co. (1994) 30 USPQ 2d WL (US Dist.), as discussed in Anthony Verrelli, which in any way, directly or "Survey of Recent Developments in Sport" indirectly, are brought into association (1994) 4 Seton Hall J Sports L 726.Cited from with or allude to an event. Any person, http://www.bakerbotts.com/news/printpage.as who contravenes the above, shall be p?pubid=13511711191999 guilty of an offence. 3 Stephen Townley, Dan Harrington and Nicholas Couchman, The legal and practical —No person, in connection with a prevention of ambush marketing in sport, sponsored event shall make, publish or Psychology and Marketing, 15(4) 1998, 335. Townley et al note (at 336) that "the display any false or misleading 'ambusher' who employs the tactics set out statement, communication or under this heading is likely to be a more advertisement which represents, sophisticated and commercially wily animal", implies or suggests a contractual or with typical examples of these activities including: unauthorised or unofficial other connection or association merchandise; unauthorised or unofficial between that person and the event, or publications; unauthorised sales promotion the person sponsoring the event, or activity; unauthorised broadcasts, virtual cause such statement, communication advertising, web sites, live screenings, films, or advertisement to be made, published video, photography, telephone commentary, information lines, pager services; unofficial or displayed. Any person who corporate sponsorship. Cited from ibid contravenes or fails to comply with 4 See, for example, the National Hockey League any provision of the proposed Act shall et al v Pepsi Cola Ltd case be guilty of an offence and shall be 5 See, Simon Gardiner, Sports Law (Cavendish Publishing, 2001) 2nd edition, page 509 – 511 liable upon conviction. 6 For example, both Qantas and , both This outline being adopted from the anti – non-sponsors, purchased television advertisements, which were shown during the ambush marketing laws, all over the coverage of the Sydney 2000 Olympic Games world is in consonance with the global 7 In June 2000, for example, Adidas launched a normative structure, and hence should be 12 part Olympics documentary series on the given due importance. Ten Network, which featured 10 Adidas sponsored athletes 8 Supra note 6, page 511 References and Notes 9 http://www.indiainfoline.com/bisc/ambu.html. 1 Frank Zimbo, "Ambush Marketing", (1996) See also, supra note 6 12(6) Australian New Zealand Trade Practices 10 http://www.murdoch.edu.au/elaw/issues/v8n2/ Law Bulletin 93, cited in kendall82_notes.html http://www.murdoch.edu.au/elaw/issues/v8n2/ 11 Tony Meenaghan, Ambush marketing: kendall82_notes.html. For a Indian Immoral or imaginative practice? Journal of perspective, Advertising Research, 77, 34 (5) 1994 at 81. http://www.indiainfoline.com/bisc/ambu.html See also Tony Meenaghan, Ambush

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marketing: A threat to corporate sponsorship? 21 David Bainbridge, Intellectual Property, 1999 Sloan Management Review, 38 (1) 1996, 103 (Financial Times, Pitman Publishing), 4th cited from ibid edition, 521 12 Howard Schlossberg, Marketing - The holes 22 (2001)RPC46 (HC), quoted from in exclusivity, Credit Card Management, May www.pbpress.com 31, 1997.cited from ibid 23 The arguments advanced by Reed, if accepted 13 Ibid. See also, would have set a ridiculous precedent. Every http://www.bakerbotts.com/news/printpage.as infringer of trade mark would then come to p?pubid=13511711191999 the Court and say that he was not using a 14 Ibid particular mark as a trademark but was 15 http://www.bonham.com/inside/glossary.html showing his allegiance with the particular 16 Ehrenberg A, Repeat Buying: Theory and brand or company, making the entire Applications, 1988, London: Charles Griffin trademark law inefficacious & Co,2nd Edition,. cited from ibid 24 P Narayanan, Copyright (Eastern Law 17 See supra note 6,page 507 House), 3rd edition, 484 18 Crimmins J and Horn M, Sponsorship: From 25 Section 16 of the act: -“ No person shall be management ego trip to marketing success, entitled to copyright or any similar right in Journal of Advertising Research, 36, 1996, any work, whether published or unpublished, 11-21.Cited from http://marketing- otherwise than under and in accordance with bulletin.massey.ac.nz/article10/article1b.asp the provisions of this act or any other law for 19 http://www.icricketer.com/series/icc_champ_t the time being in force.” ….” Hence as a rophy_2002/news/news137.shtml Shortly after logical corollary a person shall be entitled to the 1998 World Cup, for example, Adidas copyright or any similar right in any work, announced that it would delay a decision on whether published or unpublished, under the whether to remain an official sponsor after provisions of any other law for the time being 2002 unless it could be assured that its in force. Hence the Indian Copyright Act investment dollar would be better protected. allows a special legislation or ordinance to be Sources are: - Sue Landau, "Budweiser seeks passed declaring something (For example, curbs on World Cup ambush marketing" various logos and symbols associated with the Reuters News Service, July 15, 1999. See also event) to be copyrightable and is not Denise Gellene, "Coke Sponsorship is no absolutely exhaustive in nature. Longer the Real Thing", The Los Angeles 26 http://www.china.org.cn/english/BAT/21504.h Times, September 4, 1996 at 1 and Jeff tm . See also, Jensen, "Some Sponsors Pass in Game Adds", http://www.murdoch.edu.au/elaw/issues/v8n2/ Advertising Age, January 23, 1996 at 3. Cited kendall82_notes.html from ibid 27 (1992) 92 DLR (4th) 349 (BC Sup Ct). For an 20 Whether it is the World Series, World Cup or excellent analysis of the cases and its possible the Olympic Games, sponsorship is big implications in North America, see Robert business. Some estimate that sponsorship Davis, "Ambushing the Olympic Games" rights for the 1988 Olympics yielded about (1996) Villanova Sports and Entertainment $338 million in sponsorship fees. Indeed, it Law Forum 423. See also, Lori Bean, "Sports has been estimated that the total sponsorship Sponsorship and the Lanham Act" (1995) 75 for the 1992 Olympic Games was Boston University Law Review, 1099.Quoted approximately $700 million, almost double from ibid the sponsorship fees for the same event just 28 Ibid four years earlier (source- 29 Ibid http://www.bakerbotts.com/news/printpage.as 30 Ibid at 352 p?pubid=13511711191999). With this kind of 31 Ibid money involved concern over ambush 32 Ibid at 356 marketing is but natural 33 Ibid at 356-357

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34 See note 42 of subtler and had no clear-cut remedy. It was http://www.murdoch.edu.au/elaw/issues/v8n2/ the foresightedness and superior analytical kendall82_notes.html skill of the American Judiciary and the 35 NHL v Pepsi at 359 advocates that such a subtle unauthorized use 36 See H P Bulmer Ltd v J Bollinger S A, [1978] could be remedied. This is why it has been R P C 79 (C A ),quoted from ibid placed in the second category of ambush 37 Ibid marketing activities 38 [1972] 2 All ER 507 (HL), quoted from ibid 44 The Delhi High Court dismissed an interim 39 Specifically, the Court held that while "the application by the International Cricket Coke NHLS agreement obligates NHLS, so Council seeking to restrain Britannia far as it is able, to protect the rights of Coke Industries and its authorized departmental from ambush marketing, such an obligation stores from using the logo, mark and mascot cannot impose on a third party a duty to of the 2003 World Cup in their promotional refrain from engaging in advertising its schemes products in a manner which, although The ICC Development International Ltd aggressive, is not, by the law of Canada, (ICCDIL), a company formed by the ICC to unlawful... It may be that, due to Coke's control its commercial rights, including media failure to secure the right to advertise its and sponsorship rights relating to ICC events, product during the television broadcasts of had alleged that Britannia and its authorized NHIC and the securing of such rights by the departmental stores were misrepresenting defendant, the commercial value to Coke of their association with them by using the the right to describe its product as the 'official World Cup logo and other marks etc on their Soft Drink of the NHL' has less commercial promotional material without permission. value than would have been the case if Coke The ICC-held company accused the Indian had also obtained the right to advertise on biscuit manufacturer of resorting to ambush NHIC. But that cannot diminish the marketing to take advantage of the World Cup defendant's rights. " (Pepsi at 369) without investing a single rupee. 40 Ibid at 364 The ICCDIL alleged that the scheme 41 See note 49 of "Britannia Khao World Cup Jao" amounts to http://www.murdoch.edu.au/elaw/issues/v8n2/ an act of unfair trade practice in addition to kendall82_notes.html depriving the authorized sponsors to enjoy the 42 30 USPQ 2d 1963 (SDNY 1994); 23 F3d 397 exclusivity granted to them by the ICC's (2d Cir. 1994) company. 43 http://www.bakerbotts.com/news/printpage.as "Neither the plea of ambush marketing is p?pubid=1405411191999. One thing may be available to the plaintiff (ICCDIL) nor any of clarified at this juncture. Both this case and aforesaid decisions has any applicability of the Arsenal case mentioned earlier involves the facts of this case. Plaintiff, thus, must be on a broad level usage of logo. However the held to have prima facie not even made case Arsenal case has been placed in the first for issue of the ad interim injunction prayed category (activities traditionally considered to for," Justice K S Gupta said. Quoted from be piracies) of Ambush Marketing activities http://www.rediff.com/cricket/2002/dec/04reje whereas the MasterCard case is being placed ct.htm in the second category (more subtle practices 45 (2003) 26 PTC 245(Del) for which the remedy is less clear-cut or may 46 There was no discussion even on the issue of not even exist) of Ambush Marketing ambush marketing. The decision on passing practices. This may create some confusion. To off is also unsatisfactory because though the clarify, in the first case there was a plain and Court in course of their deliberations simple unauthorized use of a logo, for which mentioned the English case of Cadbury there is a clear-cut remedy. However in the Schweppes Pvt Ltd v Public Squash Co Pvt second case, the unauthorized use was far Ltd [(1981)1 All ER 213] where it was

Published in Articles section of www.manupatra.com 388 J INTELLEC PROP RIGHTS, SEPTEMBER 2003

categorically laid down that Passing Off http://www.murdoch.edu.au/elaw/issues/v8n2/ encompasses other descriptive material such kendall82_notes.html as slogans or visual images which cause 55 Copyright Protection confusion, it paid no heed to the principle Section 5 of the Act provides that, for the evolved through this case. purposes of the Copyright Act 1968, the 47 (2003) 26 PTC 228(Del) Olympic symbol should be taken to be an 48 http://www.pbpress.com/images/HOME%20A original artistic work in which copyright IP%202002/aIP0105.pdf subsists and that the AOC shall be taken to be 49 See, for example, Brothers v A the owner of the copyright. Copyright in the Gamage Ltd (1915) 84 LJ Ch 449, Olympic symbol subsists indefinitely. In EWBVenootschap v. J Townsend & Sons Ltd. certain circumstances, a fair dealing with the [1979] AC731, Quoted from supra note 38 Olympic symbol does not constitute an 50 The main elements of passing off can be infringement. The section also provides that culled out as follows: - the AOC does not have the capacity to bring ⎯A misrepresentation an action or proceeding under the law of a ⎯Made by a trader in the course of trade foreign country for infringement of copyright in the Olympic symbol ⎯To prospective customers of his or ultimate 56 Design Protection consumers of goods or services supplied Section 6 of the Act provides that the AOC is by him taken to be the owner of the design in the ⎯Which is calculated to injure the business Olympic symbol and in any registered or goodwill of another trader (in the sense Olympic design that was registered under the that this is a reasonably foreseeable Act immediately before the commencement of consequence) the 1994 Amendment Act. The AOC has a ⎯Which causes actual damage to a business monopoly in protected designs. Section 10 of or goodwill of the trader by whom the the Act provides that the AOC may apply to action is brought or will probably to do so. the Registrar of Designs to register under the Quoted from David Bainbridge, Intellectual Act a design that, when applied to any article, Property, 1999( Financial Times, Pitman results in a reproduction of an Olympic Publishing), 4th edition, 601 artistic work 51 See supra note 39 57 Supra note 76 52 http://www.pbpress.com/images/HOME%20A 58 Ibid IP%202002/aIP0105.pdf 59 Memorandum on The Objects of The 53 The following portion has been majorly Merchandise Marks Amendment Bill, 2002 adapted from an article in file with the author. http://www.belldewar.co.za/news/articles_cor However, unfortunately, the citation cannot be pcompanyoratelaw/press_ambushmarketers.h provided. Anyone interested in the original tm article might contact the author 60 See Malini Goyal, ‘Stumped’s, India Today, 54 See also, December 23,2002, 76-78

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