With the World Cup in full flow and attracting global attention, the temptation by some businesses who lack the badge of ‘Official Sponsor’ to promote their global brand will be great. But, however tempting, the stakes for those businesses, so-called “ambush marketers”, are high. By Bryan Cave Leighton Paisner
Ambush Marketing: What is it?
Ambush marketing is “a marketing technique in which advertisers work to connect their product with a particular event in the minds of potential customers, without having to pay sponsorship expenses for the event.”[1] The world’s biggest sporting events are conducive to ambush marketing stunts, and infamous examples include:
- Paddy Power who, at the time of the London 2012 Olympics, created and sponsored an athletics event in “London” although, crucially, London was in fact a small town in the middle of France.
- Budweiser, official beer of the 2010 World Cup in South Africa, had its thunder truly stolen by 36 women wearing orange mini dresses bearing the logo of a Dutch brewery, called “Bavaria Beer”. The two alleged organisers were arrested by South African police, and the former player turned football pundit Robbie Earle, to whom the seats were originally allocated, was fired by his British television network employer, ITV.
- Beats Electronics, produced “Union Jack” branded headphones, gifted to Team GB athletes competing at the London 2012 Olympics. Grateful athletes reciprocated their thanks in a flurry of tweets (including statements such as “Loving my new GB Beats by Dre #TeamGB #Beats”), and later, a number of Team GB swimmers wore their complimentary headphones poolside before their races, despite the IOC’s prohibition on advertising.
Why does everyone get so hot under the collar about it?
Sports fans may regard ambush marketing as harmless and ‘tongue in cheek’ tabloid news fodder, but it can have serious commercial implications. Big, multinational brands pay astronomically large sums of money for the privilege of being ‘Official Sponsor’ of global events such as the World Cup or Olympic Games. Often owed to the high jinks involved in an ambush marketing stunt, non-sponsors have the potential to raise the profile of a brand to the same extent as an ‘Official Sponsor’. When ambush marketing is successful, the prospect of paying vast sponsorship fees becomes much less attractive. This can have a direct impact on the staging of the event itself and, consequently, the overall experience for fans.
What can Official Sponsors and Event Organisers (like FIFA) do?
The principal concern of ‘Official Sponsor’ brands will be to protect their commercial investment. In some instances, the campaigns used by the ambush marketers may infringe their intellectual property (IP) rights, by making unauthorised use of their copyright works, infringing trade mark or design rights or by using branding that constitutes passing off. Brands will be able to enforce these rights against the ambush marketer. However, an IP infringement action taken through the courts can be costly and time consuming, and is often post-ambush when damage to a brand has already been done, and, crucially, once the benefit has been obtained by the ambush marketer. In addition, ambush marketers are often careful to frame their campaign so that no IP rights are infringed. For example, no rights were infringed in the Paddy Power, Bavaria Beer or Beats Electronics ambush marketing campaigns.
An ‘Official Sponsor’ will often look to the event organiser to take action against an ambush marketer. Organisers are keen to look after their sponsors – to do otherwise would set a dangerous commercial precedent for future events and damage relationships between organisers and sponsors. Ambush campaigns may infringe the IP rights of the event itself (such as a FIFA trade mark), although this is often rare. To address this rights gap, sports governing bodies are working closely with governments to provide specific and bespoke legal protection for sporting events and their Official Sponsors. The 2012 Olympics and Paralympics in London blazed the trail by introducing a new IP right, known as the “London Olympics Association Right” specifically for the Olympic Games. The objective of this carefully crafted new right was to deter and capture activities attempting to create unauthorised commercial links or associations with the Olympics (exactly the nature of an ambush campaign). The new right also regulated the use of advertising space in the vicinity of the various sports arenas.
Can we expect ambush marketing at this World Cup?
Event organisers are more aware of what they perceive as the threat from ambush marketing. The World Cup and its organisers are wary and are expected clamp down on any such activity during the course of the tournament in Russia. Brands weighing up the potential risks and rewards of staging an ambush campaign should be aware that Russia has introduced specific Federal Regulations covering the event. These Regulations explicitly prohibit any marketing at the event without FIFA consent (which would need to be obtained in advance through a formal application procedure). Only pre-approved sales and advertising will be permitted in the vicinity of the sport facilities.
In addition, any advertising material used within the Russian Federation during the 2018 World Cup which makes any reference to, or claims any affiliation whatsoever with, FIFA or the World Cup will require the express prior consent of FIFA. A brand engaging in such activity without consent can be fined between to 100,000 and 500,000 Russian rubles.
Ambush marketing is often a highly effective means of raising brand profile. Indeed, although many people would struggle to name an ‘Official Sponsor’ of the last Olympic Games, an ambush campaign lasts much longer in the memory because of its daring nature and the press publicity it attracts. But this comes at a price – civil, or even criminal, liability and high fines. There is also the potential for wider damage to brands that have paid in full for sponsorship privileges, and a negative impact on the attraction of sponsoring global events, denying these events the crucial financial backing they need.
Marcus Pearl (UK) and Steve Smith (US) are transactional co-leads of Bryan Cave Leighton Paisner’s Sports Sector Group. Ash von Schwan is a Senior Associate (London) specialising in IP and Alexey Gorlatov and Vlad Vdovin (Moscow) advise on Russian commercial matters.