Ambush marketing – is it lawful?

Hosting a major sporting tournament spreads a contagious feeling of euphoria across the host country, and it is all too tempting for brands to ride on that regardless of whether they are an official sponsor or not. Such attempts to associate with major events without paying for the honour are referred to as ‘ambush marketing’.

Prime examples of ambush marketing include Pepsi adopting red cans during the Beijing 2008 Olympics (Coca-Cola was the official sponsor) and a swarm of attractive females wearing orange dresses from Bavaria, a beer brand, snapped by the media at the 2010 Fifa World Cup (Budweiser was the official sponsor).

Rugby World Cup
Companies are unlikely to splash the cash to become official sponsors of events if non-sponsor companies are able to steal the spotlight

Heineken, the official sponsor of the England Rugby World Cup 2015, has secured a marketing exclusion zone within a 500-metre radius around venues and there is now talk sweeping across the internet of ‘brand police’ at the event to prevent brands pulling off stunts akin to Bavaria.

Why prevent ambush marketing?

On the one hand, marketing campaigns have become increasingly inventive to associate themselves with an event while treading carefully to not encroach upon any intellectual property rights. Nike was applauded for running its TV advert featuring places around the world named ‘London’ during the London 2012 Olympic and Paralympic Games. The Advertising Standards Authority cleared the advert. 

On the other hand, sporting tournaments are expensive to host. Companies like Heineken are unlikely to cough up millions of pounds to become an official sponsor if non-sponsors are attracting media attention at a significantly lesser financial cost.

Natasza Slater
Natasza Slater, Howard Kennedy

Is ambush marketing lawful?

Sometimes laws are enacted to provide special protection to a major sporting event, such as the legislation enacted specifically for the London 2012 Olympic and Paralympic Games. However, there is no special protection for the Rugby World Cup and no specific legislation to generally prevent association with a sporting tournament without consent. 

The International Rugby Board, which is banking on generating millions from sponsorship rights, must instead rely upon a pick and mix of intellectual property rights. It has registered trade marks comprising of the event name and the logo enabling it to potentially pursue any ambushers for infringement should they use similar or identical marks. Design rights, copyright and passing off may also come into play, but seasoned ambushers like Pepsi and Nike are often able to circumvent infringement of intellectual property rights.  

Ensuring participation agreements are in place with athletes to prevent their association with an unauthorised third party brand (see Nicklas Bendtner flashing his ‘Paddy Power’ pants), confiscating items from spectators who are given freebies emblazoned with a unofficial brand name; and making tickets non-transferable to prevent a third party from promoting them in a competition, are just some of practical preventative methods available.

Preventing clever ambush marketing campaigns can be challenging and there may be no legal recourse against a campaign like Pepsi’s red cans.  Legislation may go some way in preventing ambush marketing, although in some cases it simply pushes ambushers to be ever more creative in ambushing lawfully – brand police or no brand police.

Natasza Slater is a trainee solicitor at Howard Kennedy.