Ambush Marketing and Brand Protection

Whilst AFL fans prepare for an epic game this weekend, including Pies supporters who are unfairly maligned in our Office (yet secretly love it), there are counterfeiters and marketers planning fast and transient ambush marketing campaigns to take advantage of the media attention the event attracts. These activities fall squarely outside the law, sail close to the border (risking litigation) or are potentially legitimate (guerrilla marketing).

What is ambush marketing?

Any type of event (not just sport) can be subjected to an ambush marketing campaign. In fact, an event is not necessary, just a trigger for concentrated media attention. However, sporting events such as the Olympics and Grand Final, tend to be worth the risk due to the sophisticated sponsorship market and inevitably end up in Court. The cost of hosting a major event has escalated significantly due to human resource and national security costs rising whilst consumer access to broadcasting technology (mobile phones) had diluted the traditional revenue streams. Host governments are frequently asked by event managers to assist them in the protection of revenue by enacting sui generis anti-ambush marketing laws. The result is an escalating cat-and-mouse game between marketing strategies and the legal remedies to protect sponsorship revenues. These issues are reaching new heights, both literally (the use of blimps over events) and conceptually (legal remedies developing outside standard contract, intellectual property and confidential information laws into avenues such as consumer laws and specific event legislation.)

Definitions of ambush marketing include:

  • A planned campaign by an organisation to associate itself indirectly with an event in order to gain at least some of the recognition and benefits that are associated with being an official sponsor.[1]
  • Non-sponsoring companies deflecting attention to themselves and away from the sponsor.
  • Any attempt by an individual or entity to create an unauthorised or false association (whether or not commercial) with an event, thereby interfering with the legitimate contractual rights of official marketing partners of the event.[2]

The broad facts of ambush marketing cases tend to involve scenarios that establish “association” or “intrusion.” I would add “tarnishment” where damaging an event is considered beneficial for political or commercial reasons. Here is a list of scenarios where legal risk is high:

TABLE ONE

 

In Australia, if ambush marketing is undertaken, the legal risks fall under a range of sources:

  • International Treaties for special symbols (Paris Convention Art 6bis)
  • Intellectual Property:
    • Trade marks (sirens, logos, defensive marks, contrary to law, well known marks);
    • Copyright (recording events, original artistic works);
    • Designs law; and
    • Sections on unjustified threats of IP Infringement, parallel importation and IP Licensing terms
  • Tort of passing off (goodwill, misrepresentation and damages)
  • Australian consumer protection law (misleading and deceptive conduct and criminal offences)
  • Special protections for symbols (sui generis legislation for the particular event i.e. Sydney 2000 Games and Ministerial declaration for symbols in each State)
  • Association rights (rules of the sport or artistic association – AFL)
  • State based major event legislation (Major Sporting Events Act 2009) and Minister Event Orders
  • Broadcasting of major events (Grand Prix) and licensing (this area is broader than trespass laws)
  • Advertising law and guidelines (governed by industry (gambling), medium (online/TV) or physical (air/sea))
  • Street trading and public space rules (Local Council or State)
  • Contract law (Ticket conditions at events or nearby)
CASE EXAMPLE

Last year the Australian Olympic Committee lost the Full Federal Court appeal against Telstra for Telstra’s “I go to Rio” TV advertising campaign.[3] Telstra used the words ‘Olympic’ and ‘Olympic Games’ and a song to promote their relationship with Channel Seven (Official broadcaster of the Olympics) whilst Optus had paid a significant sum to take over Telstra’s telecommunication sponsorship of the Olympic Team. The decision determined that Telstra did not breach the terms of the Olympic Insignia Protection Act 1987 (Cth) or had engaged in conduct that amounted to misleading and deceiving consumers into believing Telstra was the telecommunications partner of the Australian Olympic team under Australian Consumer Law. The effect of the decision is that Telstra sailed very close to the wind and was saved by the use of clear disclaimers. This has undoubtedly cost the Australian Olympic Committee millions.

Many commentators consider this decision blurred the line between legal and illegal ambush marketing. In commercial terms it increased uncertainty in the value of corporate sponsorships under consumer law and a specific act for one event. In general, the primary protection against ambush marketing lies in trade mark protection and related intellectual property and advertising law.

Conclusion

It is no coincidence that the laws relating to ambush marketing vary and evolve in a way that mirror the behaviour of brands. It is realistic to assume that many businesses or persons will be unable to resist the temptation. For all parties, obtaining legal advice prior to major events is the ideal position. Either way, aside from hoping to see the Pies win this weekend, this IP lawyer will be watching the media space around the Grand Final to see what the marketers come up with next.

 

[1] D Sandler and D Shani ‘Olympic Sponsorship v Ambush Marketing: Who Gets the Gold? (1989) 29 Journal of Advertising Research 9

[2] IOC Requirements on Brand Protection and Ticket Touting

[3] Australian Olympic Committee, Inc v Telstra Corporation Limited [2017] FCAFC 165

What Event Managers Can Do?

  • The more decisive action is against ambush marketers and counterfeiters, the greater the value of sponsorship rights. Invest in the advice for long term benefits
  • Protect your brand with registrable and contractual intellectual property strategies. Consider all types of trade marks (colours, sound, defensive marks), broad copyright/designs and threat rules
  • Have a robust policy with pre-approved delegations of authority for taking action against the expected categories of ambush marketing
  • Ensure the terms of media rights agreements are enforceable

What Businesses Can Do?

  • Seek sponsorship arrangements and ensure the IP authorisation is clear
  • Use disclaimers and seek legal advice if you are risking sailing close to the wind

What Consumers Can Do?

  • Buy legitimate merchandise, particularly from the team you love! The money you contribute indirectly ensures the athletes are paid and do not join other leagues overseas
  • Read ticket terms and conditions, watch the warnings and consider being clear in reporting news, critiquing events and creating any parody and satire materials
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