Visa did it to AmEx in 1994. Nike did it to Reebok in 1996. Nike also did it to Adidas on just about every continent in sporting competitions every two to four years in the last two decades. Described as a “term often hissed about in industry circles”1, ambush marketing has become less of an ambush and more of a certainty when it comes to today’s high-stakes sponsored events.
Any attempt by a trader to connect itself with a sponsored event, whether it is a sporting event, music concert or some other sponsored event, without paying sponsorship fees, has historically been termed ambush marketing. The rationale behind laws preventing ambush marketing is that sponsors pay a fortune for the exclusive marketing rights afforded by their sponsorship deals and this provides funding for the events. It follows that failure to protect the sponsors’ exclusivity could jeopardise the events themselves.
Obvious cases of ambush marketing involve a non-sponsor either directly or indirectly creating the impression that it is associated with an event, or is an official sponsor of the event, for example by using the event organiser’s trade marks, images or logos in advertising. More insidious forms of ambush marketing involve, for example, handing out samples, products or free branded items at events or running promotional competitions surrounding the event. This type of ambush marketing boils down to the advertiser attempting to benefit from the publicity surrounding an event and to gain exposure for its own brand at the expense of the event.
Ambush marketing of this nature has been so prevalent over the years that event organisers have become wise, usually insisting on stringent legislation being in place before they will agree to allow a particular country to host their event.
In South Africa, in terms of the Merchandise Marks Act, the Minister of Trade & Industry can declare certain events “protected events” which means that the latter type of ambush marketing (essentially “riding on the coat-tails” of an event) is prohibited in relation to that event. The 2010 FIFA WORLD CUP was declared such a protected event and, more recently, the Minister of Trade & Industry has indicated his intention to confer this status on the 2013 Africa Cup of Nations (AFCON 2013), which is set to take place in South Africa in early 2013.
With regard to the 2010 FIFA WORLD CUP event, in addition to the Merchandise Marks Act, a host of by-laws and supporting Acts were created which made it virtually impossible for non-sponsors to get anywhere near the event, with the possible exception of a few young ladies in orange mini-skirts. The position was not much different with the recent 2012 Olympics in London where special legislation was put in place and even small businesses looking to cash in on Olympic fever faced a £20 000 fine. New Zealand has also already enacted laws which will deal with ambush marketing in relation to the 2015 Cricket World Cup.
Despite host countries clamping down on this type of activity and creating more stringent legislation to deal with it, - it certainly has not ceased. Rather, marketers have had to become wilier (and, some would say, more creative) in their attempts to avoid the legislation. Nike’s 2012 effort, launched on the day of the Olympics opening ceremony in twenty-five countries, was an advertising campaign showing amateur athletes and ordinary people running, diving and swimming near the word “London” in various contexts but with no reference to London, UK (for example - East London, South Africa; at the London Hotel; a London Avenue street sign etc) with the message that greatness is not reserved only for the superstars but can be found anywhere.
While Nike appears to have managed to get away with its campaign (this time), one thing is for certain: with criminal provisions and hefty fines in place, ambush marketing has become risky business.
1 “Ambush Marketing: Steals the Show” by Abram Sauer
Written by Kelly Thompson, partner, Trade Mark attorney. Thompson holds a BA and LLB from University of Stellenbosch.
Practice areas: TM and passing off legislation, copyright litigation, domain name litigation, IP litigation in Africa, advertising law, CC and company name objections.