Ambush Marketing – Part Two

In the first blog in this series I looked at some of the considerations surrounding ambush marketing, where one company has paid a large sum to be the official sponsor of a sports event and another, rival, company seeks to “ambush” those rights by generating media publicity associating it with the event without paying the sponsorship costs. In particular, I referenced Nike, a major world brand that consistently has indulged in such behaviour whilst remaining a step ahead of its rivals and the event organisers – and the lawyers. Nike goes to a lot of lengths to ensure it doesn’t break the law in its ambush marketing, having apparently made the decision that it fits better with Nike’s brand to be the clever outsider than the “official” insider for events such as the Olympics.

So, what constitutes ambush marketing? The first point to make is that this is a marketing expression, not a legal term of art. There is a broad range of activities that could be called ambush marketing and some are legal and some are not. In some ways, it’s an arms race. On one side you have event organisers and their lawyers (and host governments) working to ensure so far as possible that anything that disrupts the rights of the official sponsors or otherwise uses an association with the event without paying for it is against the law. On the other there are any number of ingenious marketers and their lawyers looking for loopholes and opportunities.

The starting point for the London Olympics is the London Olympic Games and Paralympic Games Act 2006, passed of course with specific reference to the current games, which creates a raft of specific rights of action to protect the London Olympics from unauthorised exploitation. The passing of that Act makes my first point for me: that the general law only offers a partial solution to the problems that can arise. Before explaining that Act in a later blog in this series it may be useful to put in context some of the considerations that led to its being passed.

In legal terms, there is no criminal offence or cause of action called ambush marketing. The tactics those seeking to prevent ambush marketing must use come from a variety of sources: for example, intellectual property law, commercial contracts, ticketing terms and conditions, use of existing criminal laws and bye-laws relating to casual and street trading, laws against misleading advertisements and so forth. In addition a number of practical steps such as buying up outdoor advertising space around venues and ensuring adequate policing and stewarding in and around venues are important. The result is a patchwork solution made up of a number of disparate legal rights and obligations, which ambush marketers get ever more expert at navigating around. Some examples are here.

Ambush marketing could be categorised as arising in two principal ways. The first is by way of creating an association with the event (looking like a sponsor, leveraging off the event in advertising, creating unauthorised merchandising items, branding goods or services with event logos, names and properties, and so forth). The second is by way of intrusion: in other words, placing advertising or promotional materials and activity at the event or near the event in such a way that television and media coverage or spectator attention is turned on the ambusher rather than the event sponsor. The possibilities are extensive, to say the least, as are the ways the event organiser can combat them. In the next blog I will deal with some of the legal issues raised by the first kind of ambush marketing – by association.

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