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Ambush Marketing-The Problem and the Projected Solutions Vis-A-Vis Journal of Intellectual Property 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 South Africa 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 Pepsi 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 trademarks. 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 Published in Articles section of www.manupatra.com 376 J INTELLEC PROP RIGHTS, SEPTEMBER 2003 associated with an event, such as a an event of major public interest. sporting event.”1 Sports 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 Olympic games, 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 sport 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. Published in Articles section of www.manupatra.com BHATTACHARJEE: AMBUSH MARKETING 377 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 American Express, 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 Published in Articles section of www.manupatra.com 378 J INTELLEC PROP RIGHTS, SEPTEMBER 2003 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 trademark 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.
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