The recent Ryder Cup event in Celtic Manor has once again raised the issue of ambush marketing. With the UK government also taking strong steps to protect the marketing potential of the London 2012 Olympic Games, it has highlighted the importance for anybody associated with the advertising of an event of being aware of the relevant laws.
The advertising surrounding sporting events has become a huge industry in recent years. Top events such as the FIFA World Cup or Olympics can generate huge revenues – during the Beijing Olympic Games the official sponsors are estimated to have paid almost $900 million dollars for exclusive sponsorship rights. While the majority of companies do not have this level of advertising budget, even the sponsorship of local teams and events raises a number of potential issues as companies increasingly look to maximise the impact of their advertising expenditure.
Paddy Power Bookmakers sought to generate publicity at the Ryder Cup by erecting a 50ft advertising sign in one of the fields surrounding the golf course. The sign was clearly visible from the course and this prompted the course owner and the local council to seek an injunction on planning grounds to force the sign’s removal. The court granted the injunction but gave Paddy Power three days to remove the sign. This delay (the Ryder Cup was scheduled to be a three day event), plus the surrounding media attention, meant a very successful result for the gambling firm and, ironically, the incident attracted much greater publicity than the company’s previous use of a sign during the Cheltenham Racing Festival. In that case, the sign was allowed to remain until the event finished.
Recent examples of ambushing marketing have tended to avoid unauthorised use of trade marks, designs and copyright protected works, therefore organisers have had to create more inventive ways of protecting valuable advertising rights. It is now commonplace for a body such as FIFA or the IOC to stipulate that a host country must enact legislation to protect against ambushing marketing. This was seen during the 2010 World Cup in South Africa where the host country enacted stringent legislation prior to the event. The law was famously enforced against 36 female Dutch fans who were wearing promotional dresses distributed by Bavaria Beer (whose rival Budweiser was one of the official sponsors). The Dutch fans were ejected from the stadium during a match and two of them were jailed. Bavaria and FIFA ultimately reached a settlement agreement whereby FIFA agreed to drop the charges and Bavaria agreed to respect FIFA’s commercial program until the end of 2022
Bavaria has a history of ambush advertising; during the 2006 World Cup, FIFA officials forced hundreds of Dutch fans to remove their trousers before watching a match after they arrived to the stadium in Bavaria sponsored orange lederhosen. The Bavaria and Paddy Power stories have resulted in huge publicity for the companies, however, it must be remembered that not all ambush marketing attempts are as successful and the legislation enacted by the UK Government illustrates the increasing lengths that event organisers are increasingly pursuing in order to protect lucrative advertising revenue.
In the UK, the London Olympic Games and Paralympic Act 2006 (Olympic Act) has faced significant criticism for being too far-reaching and draconian. The Olympic Act grants the London Organising Committee for the Games (LOCOG) far-reaching powers to prevent unauthorised attempts at association with the Games. LOCOG can prevent the use of a representation of any kind (in the course of trade in relation to goods or services) in a manner which is likely to suggest to the public an association between a person, goods or services and the London Olympics. The Olympic Act has been drafted so as to cover situations such as the Pringles ad released during the 2010 World Cup which featured famous footballers, who were playing in the tournament, but did not actually refer to the World Cup (or even to football for that matter).
The potential penalties for breaching the Olympic Act include injunctions, damages or an account of profits. While LOCOG has stated that it would prefer to encourage compliance through education it seems almost inevitable that it will be forced to use its powers in the lead up to and during the 2012 Games. Indeed, a removal company called Olympic Removals who have used that name and a five ringed logo since 1987 have already attracted the attention of LOCOG. In addition, LOCOG’s powers under the Olympic Act were extended further in October 2010 with the introduction of new enforcement powers relating to the destruction of infringing goods.
Important points to remember
It is important for any company wishing to associate themselves with a sporting event to ensure that its interests are protected. Equally, event organisers must ensure they are in a position to realise the full advertising potential of their event. Companies wishing to become official sponsors must ensure that the contracts they sign with event organisers provide that the organisers will take swift action against any attempted ambush marketing. A company considering its own ambush campaign must ensure that it does not infringe on the intellectual property rights of others or statutory rights as such may exist, or it may face potential court action and damages. Finally, organisers should ensure that they have adequately prepared for their event by protecting relevant intellectual property and ensuring that they have an effective method for dealing with any ambush attempts.
For further information or if you have any queries please contact Leo Moore or John Magee of our IP department.