Ambush marketing: how to keep your marketing tactics compliant in the summer of sport

With Spain claiming victory at the recent Euros 2024 championship, and the highly-anticipated Paris Olympic Games ready to begin, the summer of sports has truly kicked off.

As these major sporting events bring together billions to watch their favourite teams and athletes compete, celebrate their victories and commiserate their losses, it’s no surprise that many businesses and advertisers seek to capitalise on marketing opportunities and exposure offered by these large-scale sporting events.

There are certainly advantages to being an official corporate sponsor of a major sporting event – you only have to look at Adidas and Lidl for the Euros 2024, and Airbnb and Samsung for the Olympics. It can increase brand awareness and visibility to a wider audience whilst promoting a company’s corporate reputation and credibility.

However, sponsoring an event which is being televised globally is very expensive, and as a result, there are many businesses that will seek to associate themselves with an event without paying sponsorship fees. This advertising tactic is known as ambush marketing.

Ambush marketing is when a business or brand attempts to take advantage of an event for commercial gain by associating itself with it without authorisation. There are three types of ambush marketing:

1. Ambush by association – this is when a business misleads the public into thinking that business is an official sponsor. This means through using official event logos or trademarked words on promotional material
2. Ambush by intrusion – this is when a business gains exposure by intruding into an event and advertises without authorisation. This includes promoting a brand within a venue, potentially during a televised game
3. Ambush by opportunism – this is when a business takes advantage of a particular situation, for example by creating a viral campaign based on an event or an action relating to an event.

Although association with an event can be a way for a business to build brand value and awareness, doing it incorrectly by posing as an official sponsor can be damaging for event organisers and their official sponsors, and in turn can have severe consequences for the business. Whilst the UK does not have a statute specifically against ambush marketing, there is legislation in place to control the activity of an ambush marketer and prevent infringement of intellectual property (“IP”) rights owned by the event organisers.

The registration of trade marks and design rights generally acts as a powerful prevention tool to combat ambush marketers guilty of trade mark and design infringement. The law of “passing off” also serves to protect against trade mark infringement. To prevent claims of infringement being brought against businesses, it is important that ambush marketing tactics are nonreferential to the registered and unregistered IP rights owned by the organisers.

By way of example, the Union of European Football Associations (“UEFA”) hold a number of IP rights pertaining to the Euros 2024, including registered trade marks for the mascot, logo and the trophy’s 3D shape, along with a registered design for the official ball. Unauthorised use of these IP rights would likely result in claims of infringement being brought against a business.

The International Olympics Committee (“IOC”) also hold many IP rights relating to the Paris Olympic Games 2024, together referred to as “Olympic Properties”. In the UK, the Olympic Symbol Protection Act 1995 specifies that unauthorised use of Olympic Properties in trade, or representation of anything similar enough to create association, amounts to infringement, which can result in civil or even criminal liability. Furthermore, the IOC also publish guidelines advising on editorial use of the Olympic Properties for each Olympic Games. These guidelines set out what use is acceptable in relation to domain names, social media accounts and third-party advertisements on an editorial content page related to the Olympic Games. If a business considers referencing the Olympics in their marketing collateral, it is recommended that they read these guidelines to see if their material is acceptable under these provisions.

The event organiser may also include robust provisions into their ticketing terms to help prevent ambush by intrusion or opportunism. They may include contractual obligations surrounding the sale of any goods and services to control in-venue behaviours and restrict the promotion of unauthorised commerce within the venue.

Breaching such terms could result in removal and banning from the premises, as well as payment of damages to the organiser, depending on the terms in place between the organiser and the attendee. For large-scale sporting events, host cities can also enact event-specific local legislation to prohibit certain behaviours of attendees and local businesses in and around competition sites.

From a consumer perspective, the UK Code of Non-broadcast Advertising and the UK Code of Broadcast Advertising also prohibit certain ambush marketing tactics. Advertising standards stipulate that advertising must be clear and not misleading, and that marketers must be able to evidence that their endorsements are genuine, thereby protecting rights holders against ambush by association.

While advertising standards are not policed by rights holders themselves, if the Advertising Standards Authority does find a business culpable of marketing false endorsements, they may “name and shame” them publicly. They can also serve notice for them to discontinue their advertisement, and for persistent offenders, large fines may be incurred.

Brands that are not official sponsors of an event may choose to launch their advertising campaigns to coincide with the timing of an event, but if they are doing so, they must be careful not to make specific reference to the event.

It is important when brands are launching their campaigns that they do not mislead the public into thinking they are official sponsors by infringing IP rights owned by the event organisers.