Ambush marketing: Harmless fun or harmful IP infringement?
With sponsorship of major events, such as this summer’s Olympic and Paralympic Games, costly and highly competitive, many companies seek other ways to grab the public’s attention. But ‘ambush marketing’ can pose risks as well as opportunities, as Maxime Schoots discovers.
As Paris prepares to open its gates to the biggest sporting event in the world, a complex game of IP protection is unfolding behind the scenes. Sponsorship, alongside the sale of television rights, is one of the main ways that the organising committee and International Olympic Committee (IOC) recoups the vast sums of money involved in running the Olympic and Paralympic Games. Sponsorship also enables the host country to balance some of its own investment in the construction of stadiums, infrastructure, security and accommodation.
Notable sponsors of the 2024 Olympic Games include Coca-Cola, Airbnb and Samsung. They each pay a considerable sum of sponsorship money in exchange for the right to advertise to the large audience attracted by the event. However, not every company dedicates its budget to sponsoring the event. Others focus their effort and creativity on promoting themselves through 'ambush marketing', a marketing strategy in which a company seeks to leapfrog onto a major event to benefit from the attention it receives without paying sponsorship money to the organiser.
A case study in ambush marketing: Bavaria/FIFA
A well-known example of ambush marketing took place during the 2010 Football World Cup in South Africa. While the Netherlands were playing Denmark, a group of 36 women in the audience suddenly changed from their normal clothes into bright orange dresses to advertise Dutch beer brand Bavaria. This attention-grabbing stunt led to the women being expelled from the stadium (with two of them later arrested) and Bavaria paying compensation to FIFA, the organising body, after it pursued criminal charges. Nonetheless, the campaign received a lot of media attention, which generated significant exposure for the beer brand.
Direct and indirect ambush marketing
An ambush marketing strategy can be executed in different ways: direct and indirect. The first describes any action that exploits a protected trademark to give the consumer the idea that the company in question is a sponsor of the event. In comparison, the Bavaria stunt is an indirect form of ambush marketing. Here, a trademark registration has not been explicitly abused or a direct claim made that Bavaria is a sponsor of the World Cup, but the brand has still benefited by generating exposure during the event.
Fun, unfair or IP infringement?
Although it may be tempting to see ambush marketing as a fun way to advertise cheaply at major events such as the Olympic Games, the practice can negatively impact the event’s organisation, income and official sponsors. In addition, ambush marketing can cross over into IP infringement if Olympic trademarks are used without permission, and can also be a form of misleading advertising or unfair competition.
Unfair competition can arise when a company tries to gain an advantage over its competitors through misleading or unfair behaviour, in this case in its marketing activities. As an unofficial sponsor also benefits from the goodwill and money that the official sponsor has put into the event, this can qualify as unfair competition. If so, the company undertaking the ambush marketing activity will be held liable for the damage suffered because of unfair competition.
While it may be tempting to advertise creatively at the Olympic Games without paying sponsorship fees, it is important to consider the legal and ethical implications of ambush marketing strategies, including the risk of IP infringement and unfair competition.
For further insights, sign up for our webinar 'On your marks: How to face the IP challenges of the 2024 Olympic & Paralympic Games’, speak to your Novagraaf attorney or contact us below.
Maxime Schoots works in Novagraaf’s Knowledge Management department in our office in Amsterdam.