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Don’t Get Caught Offside -Ambush Marketing at the 2014 World Cup




by:
Paolo Cerroni
Emma Kingston
Akash Sachdeva
Edwards Wildman Palmer LLP - London Office

 
June 17, 2014

Previously published on June 17, 2014

After much preparation, anticipation and perspiration, the 2014 Football World Cup has finally kicked off. From now until the Final on 13 July, billions of people worldwide will have their attention dominated and consumed by scintillating displays of intense sporting rivalry, moments of individual brilliance, unbreakable team spirit, no shortage of controversy and disappointment. For one triumphant nation and its fans, there will be unprecedented levels of elation.

However, FIFA, the organisers of the competition, will also have its attention focussed on how best to protect its own intellectual property rights (including around 13,000 registered trade marks) as well as the considerable investments of the tournament’s official sponsors. Between FIFA’s own guidelines and specifically created legislation introduced by the Brazilian Government, the numerous and complex restrictions placed on businesses and advertisers during the World Cup are aimed at defending both FIFA’s and the official sponsors’ rights.

However, in recent years, these defensive measures have often failed to prevent the efforts of non-sponsors who seek to benefit from the global exposure of such an event by association, without incurring the considerable costs of official sponsorship. So-called “ambush marketing” has been a particular challenge for organisers of high-profile sporting events in recent years.

In this article, we examine some pervious instances of ambush marketing and also consider the restrictions in place for companies looking to promote their business and commercial activities during the World Cup 2014 without overstepping the mark.

What is ambush marketing?

Ambush marketing covers any form of marketing activity by a third party that seeks to ‘ambush’ the goodwill or cultural cachet of a major event by suggesting that it is formally associated with that event, without paying for that privilege by becoming an official sponsor. By way of example, in its most blatant form, this could involve a declaration of affiliation with the World Cup or FIFA, or use of one of the protected symbols or logos. Such clear cut infringements tend to be less common in the case of the larger reputed brands who are often cautious, well advised and/or savvy enough to avoid such flagrant foul play. However, while their tactics may be more discreet, the instances discussed below show that a number of these global brands are no strangers to controversy.

Organisers of major sporting events, such as FIFA, are becoming increasingly better-equipped to tackle the more creative forms of ambush marketing. In addition to the more traditional means of legal enforcement (for example, cease and desist letters, takedown notices, and threatening/issuing claims for trade mark infringement), protection and enforcement strategies develop organically and, as new incidents and stunts of an ‘ambush’ nature occur one year, they are explicitly identified, banned and legislated for the next. In particular, digital enforcement on social networking sites and blogs is a rapidly growing area in terms of potential infringements and, consequently, online enforcement actions in response. For example, reports have recently surfaced of takedown notices sent by FIFA to Twitter users who were using pictures of the World Cup emblem without permission weeks before the tournament kicked off.

However, while organisers and official sponsors need to be vigilant, they also have to be careful and considered in both the means and strength of their enforcement actions. For example, FIFA (as with other organisers of major sporting events) would not want to be seen as overly zealous in dishing out red cards for accidental or seemingly minor offences. Furthermore, as some of the most notorious incidents of ambush marketing have entailed a degree of humour, organisers and sponsors also have to avoid accusations that they lack a sense of humour, which has in the past encouraged other brands to adopt ‘ambush’ tactics to benefit from being on the right side of any PR and media fallout. A quick internet search will show that there are a number of articles out there lauding and rating the “best ambush marketing campaigns”.

On the other hand, if organisers and official sponsors allow brands (and particularly the sponsor’s competitors) to enjoy comparable or better coverage than the official sponsors, while spending considerably less, the official sponsorship model will be undermined. This would, in turn, deliver a fundamental blow to a key revenue stream for these global sporting events. The effects of this would be significant and felt by all concerned. Any lost revenue would need to be made up elsewhere, for example in increased ticket prices, or could instead result in budget cuts, such as infrastructure spend or other areas that are fundamental to the overall experience of the attendees, participants and viewers at home. None of which are likely to be taken in such good humour.

What forms does ambush marketing take?

Most readers will have seen a great number of advertising campaigns that make references - oblique or otherwise - to major sporting events such as the World Cup in the run-up to and during the tournament. For example, when Tango (a soft drink owned by Britvic) ran a campaign during the 1998 World Cup that echoed Coca Cola’s “Eat football, sleep football, drink Coca Cola” slogan (“Eat pies, sleep a lot, drink Tango”), Coca Cola reportedly convened a strategy meeting called “Kill Tango”.

However, not all campaigns are obvious parodies. For example, at the time of writing, a search on YouTube for “World Cup 2014 advert” returns non-official sponsor Nike’s current advert, featuring players including Cristiano Ronaldo and Wayne Rooney, which appears in the list of results two places above the advert of official sponsors Adidas.

Nike, which has received recognition for its memorable and highly effective advertising efforts, appears to have favoured an approach built upon the sponsorship of carefully targeted individuals. Individual sponsorship involved in these global events is a major issue since often sponsors of individual sportsmen and women are different (and competitors to) official tournament sponsors. This was the case, for example, at the 1992 Barcelona Olympics, when the US basketball “Dream Team” won the gold medal and team members were to take to the podium in Reebok tracksuits -Reebok being the official sponsor of Team USA. However, a number of players, including crowd favourites Michael Jordan and Magic Johnson, who held individual sponsorship deals with Nike, were not visibly bearing the Reebok logo which had been covered up by American flags. Their teammate Charles Barkley (who also donned the stars and stripes over the Reebok logo) was quoted in Jack McCullum’s book Dream Team saying “I got two million reasons not to wear that ...

Some brands focus on building up a presence at the event itself, partly so that their product or advert will be seen and recognised amongst the extensive multimedia coverage these high profile events receive. By way of example, sources indicate that 3.2 billion people worldwide watched the 2010 World Cup, which amounted to a reported 46.4% of the world. In the past, non-official sponsors have also bought up advertising space all around the relevant venue; for example, Nike not only bought up masses of billboard space around the 1996 Atlanta Olympic Park, it also took over an office block less than a mile away, turning it into a “Nike Village” big enough to be seen from the Olympic Park. When unofficial sponsors use such measures of blanket coverage, event organisers and official sponsors typically object on the basis that at least some viewers will assume that the prominent brand is an official sponsor associated with the event.

Another popular ambush tactic is to hand out branded freebies to spectators outside the venue in the hope they will take the goods in with them.

Free gifts have also been given to the players themselves, with the more recent added benefit of provoking grateful messages (and for good measure a ‘selfie’ with said freebie) on social networking sites, seen by their many followers. Bavaria’s orange lederhosen stunt at the 2006 World Cup (handed out to Dutch fans outside the stadium and removed on the orders of insistent stewards once inside the stadium, leaving dozens of spectators watching the match in their underwear) is a prime example of how overly zealous enforcement actions can actually compound the impact of a stunt and increase the visibility and attention it receives. In light of this stunt, it is expected that stadium stewards will search attendees and prevent entry to those wearing/carrying offending items.

What is protected at the World Cup 2014?

FIFA details a number of protected words and images: including logos such as the image of the official mascot and emblem of the World Cup, and a wide range of terms such as “World Cup”, “2014 FIFA World Cup”, “Brazil 2014”, “Copa do Mundo” and the slogan “All in one rhythm”. FIFA’s guidelines state that any unapproved advertisement or product that uses an official mark creates an “unauthorised commercial association”.

In addition to the ban on the use of official marks, specific legislation passed ahead of an event generally creates a much broader set of rules that will aim to prevent any activity that promotes an association between a non-official sponsor and the event. In Brazil in 2014, the ‘World Cup Law’ creates a criminal and civil offence for the direct or indirect association of any non-approved product or service with FIFA or the World Cup for commercial benefit. The law is purposefully vague and carries some hefty penalties -fines and imprisonment of up to a year. It creates a ‘no-go zone’ for brands other than official sponsors some two kilometres around each hosting venue, which prevents the sale, advertisement or distribution of any product or service without FIFA’s approval. In theory, this would prohibit many of the most famous, on-site examples discussed above.

However, the increasingly restrictive nature of these measures can serve as an irresistible opportunity for humour at the expense of the organisers and also the official sponsors, particularly where they are competitors. For example, during the London 2012 Olympics, the wine shop Oddbins ran adverts stating: “We can’t mention the event. We can’t mention the city. We can’t even mention the year. At least they can’t stop us telling you about this...”The chain also reportedly offered promotional discounts to customers who came into one of its shops with eight items bearing the marks of other non-sponsor brands.

Concluding Remarks

FIFA looks set to have a particularly challenging time in Brazil. The volume of street vendors, sole traders and small businesses affected by the World Cup Law has already proved unpopular among Brazil’s more impoverished communities. One of FIFA’s legal counsel has stated that FIFA has found South America to be “a problematic jurisdiction” for infringement and that it is mindful that it must “try to not be a bully” in the context of enforcement. FIFA has reportedly trademarked “Natal 2014” - Natal being the name of one of the host cities but also Portuguese for “Christmas”. Given that Brazil’s World Cup Law remains in force until the end of 2014, including the Christmas period, this may be one particular area where a careful and proportionate approach will be required.

As billions enjoy the month-long football feast, it will be interesting to see what instances of ambush marketing arise and the enforcement actions FIFA takes in response. In particular, FIFA will hope to be successful in the difficult task of balancing the need to protect its valuable intellectual property rights in addition to the sizeable commercial investments of the official sponsors, while at the same time avoiding accusations of being overly-aggressive or lacking a sense of humour, which could do greater harm to their brand than any potential infringement.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Paolo Cerroni
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