25 October 2019

Ambush marketing – it’s just not cricket

International cricket’s World Cup and currently Rugby Union’s showpiece World Cup in Japan rank as two of the most watched sporting events of the year.

The global partners and sponsors of these events include multinational companies such as Nissan, Heineken, Emirates, Land Rover, MasterCard, Canon and Coca-Cola.
Significant investments are made to gain the exposure and goodwill that come with being associated with major sports events.

Ambush marketing is often described as ‘parasite marketing’ or, as Norman Mandel of Coca Cola said a few years ago, “it’s not clever marketing; it is stealing, it is thievery.”

Strong words, but association with an event without paying for that benefit clearly dilutes the goodwill of those sponsors who have paid.

There are many examples of ‘successful’ ambush marketing campaigns. Back in 1999 when Wales hosted the RU World Cup, Nike, the unofficial ‘masters’ of the ambush, rather than paying for event sponsorship, simply unfurled a huge banner over the entrance to a car park opposite the Millennium Stadium! Although a simple campaign, it did ensure exposure of the brand at the event.

In contrast, at the RU World Cup in 2011, Steinlager Beer were very smart with their “We believe” campaign. Heineken was the official sponsor of the event and Steinlager were sponsoring the All Blacks. Heineken had a feeling that Steinlager would ambush.

However, they didn’t expect a reintroduction of the Steinlager white can as a lucky charm, as the last time the All Blacks won the RU World Cup, the can was white.

Spectators sneaked in the white can as their lucky charm, Steinlager won big sales and the All Blacks won the World Cup!

Naturally, host nations, event organisers and rights holders need to protect official sponsors and go to great lengths to prevent ambush marketing, even if technically it doesn’t infringe any rights or break the law.

The majority of hosting nations will enact specific legislation to combat ambush marketing and create so-called “clean zones” (this would have prevented Nike’s car park banner) before the event. This legislation is very effective and provides the exclusivity which the commercial partners pay for.

One of South Africa’s biggest selling points in its bid for the next RU World Cup in 2023 was its strict ambush-marketing legislation, which was created in the lead-up to the FIFA 2010 World Cup. Its Merchandise Marks Act, among others, made provision for “clean zones” and the Consumer Protection Act prevented ambush marketing by association.

This year’s host nation, Japan, decided not to enact specific legislation to combat ambush marketing. The Japanese Rugby Union elected to rely on existing trademark, competition and copyright legislation to combat the practice during the RU World Cup which they say, prohibit most of the tactics used by ambush marketers.

Japanese legislation has harsh penalties for any breach. Infringement of a trademark right or copyright are punishable by imprisonment and substantial fines.

With the Tokyo 2020 Olympics coming up, in addition to Japan’s existing legislation, the Olympic symbol and mottos will benefit from further special statutory protection which the host country will be required to enact by the IOC.

If you are considering marketing campaigns in connection with any sporting event, here are a few useful tips;

• Social media is an obvious marketing channel but be careful not to use official names, even in hashtags #RugbyWorldCup #Japan2019 #EnglandRugby for example
• Don’t use player images, or those of coaches for that matter, to imply endorsement of your products or services unless you have permission
• Don’t use official logos or marks associated with the event or any of the teams without approval
• Don’t offer tickets for the event as prizes as this will require the organiser’s permission
• Beware of infringing copyright by unauthorised use of photographs of the event, its teams and players
• Remember that no one has outright ownership of generic terms such as ‘rugby’ or any other sport for that matter; just avoid an unauthorised association with the event.

For further advice and guidance please get in touch with sports lawyer Tim Bailey at tbailey@hcrlaw.com

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About the Author
Tim Bailey, Consultant
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