Ambush marketing: savvy advertising or guerrilla tactics?

This year sees the arrival of another highly anticipated summer of sport. Some of you will be looking forward to Wales’ quarter-final clash in the…

This year sees the arrival of another highly anticipated summer of sport. Some of you will be looking forward to Wales’ quarter-final clash in the Euro 2016 football tournament, with England fans left to hope for some measure of British success at Wimbledon and Rio 2016 (who cares about football anyway?).

Either way, if your business is looking to capitalise on the summer’s sporting activities, we recommend you think carefully before doing so to avoid any potential pitfalls.

What is ambush marketing?

An ambush marketing strategy is one which capitalises on the prominence and good will of a high profile event by running a marketing campaign which associates itself with the event, without incurring the fees of official sponsorship or partner status.

Indirect ambush marketing is when the advertiser alludes to an event by use of themes or colours, without necessarily referencing the event itself. Direct ambush marketing is when an advertiser makes statements which would lead a consumer to believe that they were an official sponsor or partner of an event, possibly including unauthorised use of intellectual property.

Event organisers have taken steps to reduce the impact of ambush marketing due to the problems it causes for paid-up sponsors when their exclusive sponsorship rights are devalued. Similarly, you may find yourself on the receiving end of a substantial intellectual property infringement claim if you don’t play by the rules.

Some event organisers have gone so far as to require hosts of major events to introduce laws to prevent ambush marketing. For example, the London Olympic and Paralympic Games (Advertising and Trading (England)) Regulations 2011 prevented people from engaging in advertising or trading in designated event zones for the duration of the 2012 Olympic and Paralympic Games unless they had authorisation. Equivalent laws will be in place in Rio de Janeiro this year.

However, the more creative marketers are finding clever ways around these regulations. Some successful examples of ambush marketing in action include: 

  • Dr Dre sent Union Jack branded "Beats by Dre" headphones as gifts to Team GB athletes during London 2012, some of whom wore them prominently before competing in events providing Beats with free international TV exposure. Athletes also took to Twitter to tell their many thousands of followers how much they loved their new headphones
     
  • Heineken entered into an exclusive sponsorship deal for the 2015 Rugby World Cup stipulating that it was the only beer that could be sold inside the grounds and the vicinity. Guinness retaliated with a real time response to the action on the pitch, tweeting “Could’ve settled… instead went for history” with the hashtag #Madeofmore when Japan succeeded in their shock victory against South Africa, which rapidly reached 126,000 Twitter users
     
  • When the South Korean flag was displayed at a football match between Colombia and North Korea during London 2012, Specsavers were quick off the mark with an advert in the national press the next morning showing the correct flag under its well-known tag line: “Should’ve gone to Specsavers”
     
  • In 2012 Paddy Power announced it was the official sponsor of “the largest athletics event in London this year” with reference to an egg-and-spoon race in the French village of London, Burgundy. After initially demanding the advert was withdrawn, the organising committee subsequently reversed its decision following a threat of legal action from Paddy Power.

And when it goes wrong: 

  • Danish striker Nicklas Bendtner was fined €100,000 and banned from a World Cup qualifying match after revealing Paddy Power branded underwear during his celebration after he scored during a Euro 2012 match. The fine was ultimately paid by Paddy Power
     
  • Whilst widely perceived as one of the more successful ambush marketing campaigns, Dutch brewery Bavaria’s antics during the 2010 World Cup resulted in two women being arrested and 36 ejected from the stadium for wearing bright orange outfits supplied by the brewery
     
  • Qantas Airlines ended up on the receiving end of a court claim from the official sponsor of the Sydney Olympics in 2000 for using the slogan "Spirit of Australia" which Ansett considered was too similar to the official games slogan "Share the spirit".

Tips

To inhibit the actions of ambush marketers, you should consider the following:
 

  • If you are paying for the privilege of being an official partner or sponsor, make sure that your sponsorship agreement requires the event organisers to take action against ambush marketers. Consider whether you should be compensated if ambush marketing is successful.
     
  • If you are an event organiser, make sure that your supply contracts contain provisions to ensure that any contractors, venues and suppliers will assist in preventing and stopping ambush marketing. Consider imposing obligations to remove pre-existing non-sponsor branding and limiting venue suppliers to official sponsors. Ensure restrictions are in place on ticket sales to prevent people from selling or giving away items on the premises unless they are licensed to do so.
     
  • Bear in mind that any advertising will be subject to the local laws and regulations of the host country and therefore you may require local advice on what you can and can’t do.
     
  • Event organisers often publish guidance around use of their trademarks and who can use them – check which marks are registered and whether you have the benefit or any licensing or rights to use before embarking on a marketing campaign.

Further information 

  • The UK Code of Non-broadcast Advertising (CAP Code) and UK Code of Broadcast Advertising (BCAP Code) contain guidance on advertising in line with UK legislation.
     
  • The European Sponsorship Association published a policy paper on ambush marketing in April 2014 considering the different forms of ambush marketing and what may or may not be considered lawful. 

If you are interested in finding out more about this topic, please contact Katherine Scott, a solicitor in the Commercial Dispute Resolution department, on 0161 214 0588 or email katherine.scott@weightmans.com or your usual Weightmans contact. 

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