Like it or not, ambush marketing campaigns tend to capture media attention, but they pose tricky issues for all involved.

Ambush marketing is a deliberate attempt by a brand to take advantage of a high-profile event to obtain publicity without being an official sponsor.

An interesting example of ambush marketing was the Bavaria beer campaign at the 2006 World Cup. Dutch fans who purchased 12 cans of Bavaria beer were able to buy orange lederhosen bearing the Bavaria logo for €7,95, which supporters took to wearing whenever the Netherlands took to the pitch. FIFA officials at a stadium in Stuttgart required spectators to remove the garish trousers, leaving 1,000 supporters in their underwear. At the time, some questioned FIFA’s actions, but it’s worth noting that the American brewery that makes Budweiser was an official World Cup sponsor.

Why does it matter?

Brands invest significant sums to become an official event sponsor, often securing the right to be the exclusive supplier of specific goods and services. If ambush marketing is carried out by a competitor, it may cause significant damage to an official sponsor’s marketing campaign, including through loss of sales. However, even if ambush marketing campaigns are undertaken by brands in different markets, they can erode the exclusivity which event sponsors pay for. There is, therefore, every reason for brands to take action.

What can be done?

There is currently no legislation in the UK which specifically addresses ambush marketing, but there are other means of protection.

Prevention is better than cure

Acting early when planning event sponsorship can help to ensure that ambush marketing is prevented, and that means of redress are available if it does occur. When negotiating sponsorship deals, brands should look to include contractual provisions which oblige the event organiser to take measures to minimise the risk of ambush marketing and to take action (including legal action) if it occurs. Sponsors should also look to ensure that ticket terms and conditions prohibit ambush marketing and that venues are obliged to keep a close watch over the events they host to ensure any ambush marketing is addressed swiftly.

Intellectual property rights

IP rights provide a useful means of deterring ambush marketing, and also provide the means by which the event organiser or the sponsoring brands may be able to take action, depending on the specific circumstances:

• brands can rely on their registered trade mark rights, and event sponsors may be able to rely on registrations for official event logos and slogans, to bring an action for registered trade mark infringement if the ambush marketing is taking unfair advantage of the brand’s or the event’s reputation;
• event mascots and elements of event branding may be protected by copyright and/or by design rights such that it may be possible to bring an action for copyright infringement or design right infringement if the mascots or branding are reproduced by ambush marketers;
• if an ambush marketer is misrepresenting their involvement in an event, or is causing confusion amongst the public as to whether they are an official sponsor, it may be possible to bring an action for passing off.

The types of events which tend to be subject to ambush marketing are high profile and time limited, meaning that it’s imperative for brands and event organisers to take immediate action. In some cases, a letter before action may be sufficient to bring the ambush marketing campaign to an end. However, in the most serious cases it may be appropriate for the brand or event organiser to seek a preliminary injunction to try to put an immediate stop to the ambush marketing campaign, pending full legal proceedings.

UK advertising standards

Brands and event organisers may also have recourse under the CAP and BCAP advertising codes, as well as consumer protection legislation, to prevent misleading advertising.

Conclusion

Given the value of sponsorship deals, brands should put a strategy in place to minimise the risk of and to address ambush marketing, to ensure that their investment is protected.

This article was first published as part of our “Expert insight on advertising, marketing & sponsorship” publication. Read insights on similar topics in the full publication here.