INTRODUCTION Ambush marketing or ambush advertising is a class of advertising strategies, in which an advertiser markets themselves in such a way that it competes with or ambushes the marketing presence of a competitor. The term "ambush marketing" was coined by marketing strategist Jerry Welsh, while he was working as the manager of global marketing efforts for American Express in the 1980s Ambush marketing involves an advertiser attempting to capitalize on the prominence of a major event, without paying the event's organizer to be an "official" sponsor. An advertiser may attempt to perform marketing within or near an event's venue, make false claims implying they are an official sponsor or are associated with the event, or allude to the imagery and themes of an event in their marketing without any references to its trademarks. Ambush marketing is most common in, but not exclusive to, major sporting events: the practice has been a growing concern to the organizers of major sporting events —such as FIFA (FIFA World Cup), the International Olympic Committee, and the National Football League, as such efforts devalue the exclusive sponsorship rights that they had sold to other companies. In an effort to control ambush marketing, event organizers have, in recent years, required the host cities and countries of their major events to enact laws controlling commercial activities in and around an event site, implementing special restrictions on the use of the event's intellectual property, and additional restrictions on companies creating unauthorized "associations" with an event. Such regulations have attracted controversy for limiting freedom of speech, and for preventing companies from factually promoting themselves in the context of an event. Event owners and official sponsors have campaigned vigorously against a practice they refer to as “ambush marketing”. By this, they have referred to a variety of activities undertaken by rivals of the official sponsor that could confuse the public as to the real sponsor. However, their arguments rest on ethical assumptions that have no standing in court; in fact, the case law to date indicates that many alleged instances of ambushing are quite legitimate. This paper examines a range of activities classified as “ambushing” and argues that marketers need to consider ambushing in legal terms – as either passing off or breach of trademarks. In addition, we suggest more explicit documentation of the rights 1 available to official sponsors, so they are better able to anticipate competitors’ likely actions. Finally, we call for a reduction in the range of sponsorship packages, which would reduce the potential for conflicting sponsorship arrangements. DEFINITION A marketing technique in which advertisers work to connect their product with a particular event in the minds of potential customers, without having to pay sponsorship expenses for the event. An example of ambush marketing might involve selling music merchandise just outside the grounds of a concert without the consent or awareness of the concert promoters, relying on association with the concert to drive sales. The practice by which a rival company attempts to associate its products with an event that already has official sponsors. Ambush marketing refers to a company’s attempt to capitalize on the popularity of a well- known property or event without consent or authorization of the necessary parities. It is a marketing strategy in which a competing brand associates itself with major sporting events without paying sponsorship fees.It is an attempt by a third party to creat adirect or indirect association with an event or its participants without their approval, hence denying official sponsors, suppliers and partners, part of the commercial value due to their official designation. Events such as Olympics, cricket or football world cups, super bowl , the recent commonwealth games, 2010 organiszed in Newdelhi etc. provide a platform to coporations to showcase their products facilitating promotion of their products in hunders of countries and to millions of people. EVOLUTION OF AMBUSH MARKETING Sponsorship’s growth occurred for two main reasons: First, researchers have claimed it could break through clutter that affected advertising; this made it an increasingly attractive alternative to mass media advertising (Meenaghan 1998a). 2 Second, event owners became more sophisticated at developing packages that enabled them to obtain higher returns from their events (Altobelli 1997). For example, strategies that developed different levels of sponsorship and that promised exclusivity within each level enabled the IOC to make a profit of over $US200 million on the 1984 Olympic Games. These were also the first Olympics to operate with no public money (Graham, Goldblat & Delpy 1995 p207). While sponsorship’s attractiveness increased, marketers’ ability to enter into sponsorship contracts decreased as the cost of securing these and the level of competition for them rose. Ambush marketing thus arose when companies that were formerly able to associate themselves with certain high-profile events (such as the Olympics) became excluded from official sponsorship deals, either by way of increased costs or category exclusivities. Sandler and Shani (1989) suggested that the first instance of ambush marketing occurred when Kodak failed to secure sponsorship rights for the 1984 Olympic Games to Fuji. Undeterred, Kodak became the sponsor of the ABC’s broadcasts of those Games and the “official film” of the U.S. track team. If Fuji was the victim of ambush marketing in 1984, it is widely accepted that it exacted its revenge on Kodak in 1988 (Bayless 1988; Fannin 1988). Kodak secured the worldwide category sponsorship for the 1988 Olympic Games, but Fuji aggressively promoted its sponsorship of the U.S. swimming team. In a parallel move, although CocaCola secured official worldwide sponsorship rights to the 1990 Football World Cup, Pepsi sponsored the high profile Brazilian soccer team (Falconer 2003). The International Olympic Committee (IOC) has expressed strong concern over ambush marketing, however, the Olympic Games are not the only event where confusion over sponsors and their rivals has occurred. Few will have forgotten the failure by the New Zealand Rugby Football Union (NZRFU) to secure co-hosting rights to the 2003 Rugby World Cup. In announcing their decision to make the Australian Rugby Football Union the sole World Cup hosts, the International Rugby Board (IRB) noted that the NZRFU had been unable to guarantee “clean” stadia. Ultimately, the NZRFU’s bid for hosting rights foundered in part because of the IRB’s determination to close promotion loopholes that rivals of official sponsors might exploit. 3 A similar situation arose in early 2003, when the Indian cricket team came close to boycotting the ICC Champions Trophy tournament. Players expressed concern that personal advertising and endorsement contracts they had entered into would conflict with the ICC anti-ambush rules, designed to ensure official sponsors had exclusive promotional rights during the event (Reuters 2002). These examples provide a brief overview of the relationship between sporting commercialisation and ambush marketing. The status of sportspeople as role models and heroes of young consumers also increases the likelihood of conflict between event, team and individual sponsorship contracts. However, although few would dispute that these conflicts have increased in number and scope, considerable debate over what constitutes ambush marketing still exists. The following section examines specific instances of alleged ambush marketing in more detail and considers the extent to which these breach fair trading and trademark statutes. TYPES OF AMBUSH MARKETING Direct Ambush Activities This is when a brand intentionally tries to make itself seem associated with an event or property for which it has purchased no rights and is not an official sponsor. Some companies choose to do this mainly to attack rivals; others do it just to capitalize on the large audience generated by the event or team. Predatory Ambushing: Intentionally attacking a rival's official sponsorship in an effort to gain market share and to confuse consumers as to who the official sponsor is. A good example is the Amex campaign used against Visa during the 1992 Summer Games. Coattail Ambushing: The attempt by a brand to directly associate itself with a property or event by using a legitimate link other than becoming an official sponsor of the property or event. For example, a sports-apparel company may sponsor an athlete who is participating in an event not sponsored by the brand, an event that perhaps is even sponsored by a rival brand. 4 Property Infringement: The intentional unauthorized use of protected intellectual property. Such properties can include the logos of teams or events, or making use of unauthorized references to tournaments, teams or athletes, words and symbols. Self-Ambushing: Marketing activities by an official sponsor above and beyond what has been agreed on in the sponsorship contract. This includes things like handing out free promotional T-shirts at a game, without the sports organization's permission. The brand may have already covered the stadium with its signs, or the organization may have earlier agreed to let a different brand hand out shirts. In either case, it clutters the marketing space, ambushes the organization the brand is supporting and infringes upon other official sponsors. Indirect Ambushes These are defined as the intentional association of a brand with an event or property through suggestion or indirect reference. As in direct ambushes, many companies using this type of ambush marketing see it as simply another way to publicize and market their goods, with no motives concerning their rivals' sponsorship activities. Associative Ambushing: The use of imagery or terminology to create an allusion that an organization has links to a sporting event or property. In the summer of 2008, for example, marketing campaigns by Nike Inc. made frequent use of the number 8—a symbol of luck and fortune in China, as well as a symbol for the Games.