With globalization and technological developments in communications and media, advertising has become a whole different matter in today's world. In this article, we take major sports events as a case study to examine the concept of "ambush marketing".
Followed by billions of people, and representing more than 3% of the world trade, major sports events are uniquely suited as a means of advertisement. As ticket sales or private donations no longer cover rapidly increasing organizational costs, broadcasting rights and sponsorship agreements have come into prominence as considerable sources of income for clubs and organization authorities. At an increasing rate in the last two to three decades, companies have started to sign sponsorship agreements with organization authorities to use related sports events' logos or registered brands on their products or in advertisements to benefit from those events' commercial standing.
The Olympic Games and World Cup events, in particular, have become a racing track for companies to capture official sponsorship. Those companies that missed the official limelight, have found a controversial alternative, and this is where "ambush marketing" or "guerrilla marketing" comes into play.
Jerry Welsh, the former Marketing Director at American Express, who coined the term "ambush marketing," described it as a conceptual marketing child.1 According to him, official sponsors of events merely buy the offered limited product; they do not have any property or administrative right to the thematic space that can be used by non-sponsors who do not have any moral obligation to keep themselves away from thematic space.2
Nowadays, Welsh's child has evolved into a menace for official sponsors and, indirectly, sports events. It has become an exercise by non-sponsors' attempting to associate themselves with the sports events by using various marketing tactics without paying any sponsorship fee, and thereby causing the official sponsors' connection with the event to deteriorate.3
So then, where does ambush marketing legally stand? There is no easy answer. While some tactics may be considered as infringements of event organizers' or official sponsors' IP rights, it may not be possible to pass judgment on all ambush marketing attempts as being illegal. The ambushers mostly find a creative way to use unprotected generic words or images that may be associated with a particular sports event, navigating through legal gaps.
Background
The Ambush Marketing is believed to date back to the 1984 Olympic Games where Fuji was the official sponsor of the Games. Its main competitor, Kodak, used a clever ambush tactic in becoming the sponsor for the television broadcasting of the Games. Fuji evened the score by ambushing Kodak at the next Olympic Games in sponsoring the US swimming team, while Kodak was the official sponsor of the Games.
Soon, organization committees had to find ways to fill various legal gaps by both forcing governments to legislate special provisions, and developing sponsorship agreements, for the purpose of preventing ambushers. However, non-sponsors refused to be outsmarted, and kept finding ways of ambushing their competitors, despite special legal provisions that were put into place for the Atlanta Olympic Games (1996), Sydney Olympic Games (2000), Beijing Olympic Games (2008) and South Africa World Cup (2010). Contracting with the athletes, sponsoring the press conference room, using helicopters or planes to fly banners over the event arenas, giving away free products to spectators of the event, or tattooing the logo or brand on athletes during the course of games, shaving brands or logos onto the back of players' heads are some other creative ambush tactics.
Legal Dimension
Ambush Marketing is still being considered under the domestic trademark or unfair competition laws in most countries. From a legal point of view, ambush marketing is a controversial and infrequently litigated issue, and there is no internationally recognized law in this area. For instance, in the US, where ambush marketing is commonplace, this practice does not habitually attract trademark infringement cases. Any such claim is unlikely to be successful under trademark infringement rights, as ambushers create and use their own marks and names associated with themselves. The more likely legal recourse would be under the passing-off, false advertising or breach of contract. In another leading jurisdiction, the UK, there is no specific legislation per se for ambush marketing claims. The protection may be exercised through the British Code of Advertising and Sales Promotion against advertisements that do not comply with the Code.
Some arrangements were made to tackle this issue, but they were all event-specific, such as the Sydney 2000 (Indicia and images) Protection Act (1996) and the Olympic Arrangement Act in Australia, and the Olympic Symbol (Protection) Act (1995) in the UK. Uncertainty in establishing ambush marketing for filing claims is a fundamental challenge for seeking a legal remedy.
The most controversial question remains as "Should ambush marketing be regulated under specific laws?" Regulations in this area vary from country to country and event to event. However, a lack of traditional legal remedies or judicial definition and sanctions cause legal gaps or grey areas that become the ambushers' playground.
To tackle ambush marketing, specific legislations seem to be a primary need. Turkey is among many jurisdictions with no specific legislation to prevent or draw the boundaries of ambush marketing. By "specific legislation", we mean general provisions regarding ambush marketing, as opposed to event-specific legislations, such as the Olympic Games Acts.
The challenge thus remains for organizers and legislators to block ambushers from creatively infiltrating into the grey areas left out by domestic IP laws. The most logical solution has traditionally been to protect the events' brands, logos, mascots, slogans, emblems and brand equity from possible ambush marketing actions. For its share, in 1992, Turkey enacted the "Istanbul Olympic Games Act.4 Yet, event-specific legislations fail to prevent ambushers from using unprotected generic words, images or other creative strategies to associate themselves with the events.
Organizers' efforts sometimes have gone overboard; the prime example being the Canadian Government during the course of the Vancouver Winter Olympics (2010). Upon IOC's urging, even the most generic-sounding words, such as 'winter', 'gold', 'silver', 'bronze', 'sponsor', 'Vancouver', 'Whistler', '2010', 'tenth', 'medals', 'games', etc, were specifically covered by legislation, triggering widespread criticism invoking breaches of freedom of speech.
Moreover, from the viewpoint of competition law, the dominant position granted by event-specific legislations may lead to an abuse of a dominant position.
Whether it is lawful or not, ambush marketing undermines the sponsors' right of exclusivity. Without a doubt, ambush marketers' actions reduce the value of official sponsorships by underhandedly associating themselves with the events; thereby damaging the official sponsors and brand value, and indirectly the popularity of a particular event as it runs the risk of attracting less sponsorship.
In conclusion, ambush marketing reveals two competing interests: Preserving the commercial attraction of official sponsorship on the one hand, and commercial free speech on the other. Obviously, traditional measures, such as domestic or international IP legislations are far from being sufficient to strike the right balance. Event-specific legislations, in turn, can go too far as demonstrated by the Canadian example. The 2012 London Olympics challenged regulators trying to outsmart clever ambush marketing tactics and future international sports events promise to be no different.
Footnotes
1 Welsh Marketing Associates 'Ambush Marketing: What it is; what it isn't' available at http://welshmktg.com/WMA_ambushmktg.pdf
2 ibid.
3 Townley, S. Ambush/Parasitic Marketing and Sports (2002) Professional Direction Ltd
4 Istanbul Olympic Games Act, 1992 available at http://www.cies-uni.org/files/Olimpiyat_Yasas%C4%B1.pdf
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