Turf wars: IP and the FIFA World Cup 2018

It is now only 12 weeks until the 2018 FIFA World Cup in Russia, with the hosts taking on Saudi Arabia match on 14 June. Novagraaf’s Claire Jones examines the IP implications of this headline-grabbing event.

The FIFA World Cup is the world’s largest single sporting event, with nearly half the world’s population tuning in and the event comprising nearly 30% of FIFA’s annual revenue from marketing rights generated. FIFA has, as with previous events, produced a range of guidelines and documents protecting its IP, and the Russian State Duma adopted Federal laws to recognise FIFA’s rights in the World Cup 2018 and Confederations Cup 2017. FIFA has a whole section on its website profiling its rights, which include trademarks such as FIFA, WORLD CUP 2018 and RUSSIA 2018, together with a range of registered and unregistered designs and copyrights subsisting in works such as posters, emblems and mascots. 

The event’s official sponsors are given the right to use FIFA’s IP and to use the tournament as a marketing vehicle as they see fit. Other brands will be subject to the strict rules.

In addition, a range of businesses will be keen to use the event to drum up revenue and sales.  However, FIFA will be strictly monitoring those who are not an official sponsor.   

FIFA’S IP Manual

FIFA’s Guidelines were created for the general public to give guidance on what is and is not deemed acceptable. The guidelines also helpfully set out the Commercial Affiliates linked with the event.

Official sponsors have paid handsomely for the privilege, with the six top-tier partners (Adidas, Coca-Cola, Kia/Hyundair, Emirates, Sony and Visa) paying a combination US$ 177 million annually to FIFA.

Ambush marketing

Ambush marketing is a strategy whereby an advertiser ‘ambushes’ an event to compete for exposure against competing advertisers. Ambush marketing became mainstream news during the 2010 FIFA World Cup with Bavaria Beer disguising Dutch models as Danish fans and revealing promotional attire once the match had commenced; and Walker’s Crisps launching the ‘World Cup of Flavours’. However, examples of such tactics can be seen as early as the 1984 Summer Olympic in Los Angeles and the 1988 Summer Olympics in Seoul where American Express and Visa led a number of ‘credit card wars’.

There is a range of ambush marketing which includes:

• Ambush by Intrusion: A brand intrudes an event to gain prominent exposure, targeting stadium audiences and media viewers (for example, Bavaria Beer).
• Ambush by Association: A non-official sponsor  creates a campaign which brings to mind a sponsored event or misleads consumers into believing that the brand in question is an official sponsor (examples of this can be seen from Paddy Power, giving away ‘free lions’ t-shirts or Nike’s ‘Find Your Greatness’ campaign during the London 2012 Olympics). 
• Opportunistic/Real-Time Ambushing: Where a brand reacts and refers to topical event (for example, OREO’s Tweet during a black out at the Super Bowl in 2013). Although it is debatable whether such reactions are actually ambushing.

FIFA has written in a number of protection policies in an attempt to prevent any such strategies, including  two-kilometre exclusion zones around each World Cup venue, with only official sponsors being able to advertise, sell or distribute their products.

Battle for awareness

While Coca-Cola and McDonalds achieved high awareness of their official status, this is likely more due to the fact that they have been official sponsors for such a long time and consumers are educated to their status. However, some of the other brands are battling against non-official sponsors, including long-time battle partners Adidas v Nike, and newer official partners, such as Hisense and Vivo who need to work even harder to gain awareness.

In 2014, online site Campaign Live revealed that 40% of consumers in the UK, US and Brazil believed that MasterCard, Nike and Pepsi were official World Cup sponsors (see here), with a study by Global Language Monitor revealing that four out of the top five brands associated were not official sponsors (see here).

It has also been previously reported that FIFA was struggling to attract sponsors, with high financial costs and reputational risks being cited as the main issues. Even FIFA’s own guidelines show that there is a lack of third tier sponsors listed, with only two out of the 20 regional supporter slots filled to date. 

Social media

Social media platforms have become an important part of interaction, with many brands using various platforms to gain recognition. The platforms can be used for ambush marketing relatively easily, although the major sites are becoming very reactive in blocking or deleting content that is objected to by a rights holder.

From the 2014 World Cup, on social media, six out of the 12 top brands for social buzz volume were not official brand partners. Again, non-official sponsors should be aware of the regulations and FIFA’s Protected Terms for social media.

Copyright

There is no defence in copyright for legitimate descriptive commercial uses and businesses can fall foul of  FIFA if they show any imagery which creates an unauthorised association.  So, for example, an advertising poster in the window of a bar announcing match broadcasting, with use of a football or the colours of the Russian flag will not be challenged, but adding the official font or World Cup logo will be.

In addition, online streaming of any content will be copyright infringement and seen as a communication to the public of a protected work without the proper authorisations and licences in place.

Sponsoring the player not the game

In 1996, Nike made headlines during the Olympic Games in Atlanta for their gold trainers worn by Michael Johnson as he won a gold medal in the 400 meters. At the 2012 London Olympic Games, while they were again not an official Olympic sponsor, Nike sponsored many of the athletes who sported their brightly coloured footwear.

In Russia, Adidas will be supplying 11 national teams with kit and shirts, while Nike will have 10. Puma, Umbro and New Balance will have two a piece, with others including Erreà Sport and Hummel.

Brand owners will often use an association with a player to sail close to the wind with an advertising campaign; for example, during the 2012 UEFA European Championship, a Danish player (Nicklas Bendtner) was fined for wearing his ‘lucky pants’, which happened to have ‘Paddy Power’ written on them.  In 2014 at the World Cup in Brazil, headphone producer ‘Beats by Dr. Dre’ also attracted FIFA’s attention with a number of campaigns for ‘The Game Before The Game’, encroaching on Sony’s rights as the official sponsor.

Rather than paying to be an official sponsor, some brands will invest in individual footballers and teams. Nike has sponsored a number of well-known footballers including Ronaldinho, Cristiano Ronaldo, Didier Drogba, Neymar, Zlatan Ibrahimović, Wesley Sneijder and Wayne Rooney, amongst others. Puma sponsor a number of national and regional teams through the EU, including Arsenal and have sponsored a number of notable players as well, including Sergio Aguero, Diego Maradona, Pelé, Johan Cruyff and Thierry Henry. The official FIFA sponsor Adidas has deals in place with Lionel Messi, Gareth Bale, Renato Sanches and Julian Draxler.

A number of airlines have sponsored regional and national teams and been involved in official World Cup sponsorship as well, with Qatar Airways replacing Emirates as the official sponsor.

Dos and don’ts

If you are thinking about using the World Cup to advertise your business in any non-official capacity, keep in mind the following:

• DON’T: Use the trademarks, logo or images referenced by FIFA, or offer tickets, even as part of a prize draw.
• DO: Research and understand the IP portfolio of FIFA and what will and will not be seen as ‘unauthorised commercial association’. Speak to your Novagraaf consultant about any planned activities so that we can advise further.
• DO: Get creative!  Utilise the themes of football and sport to your advantage, but the more elements which are combined together, the more likely it is that it will be seen as an infringement, even if you don’t use the official elements.
• DO: Sensecheck any promotion/post before uploading to social media to ensure that it is on the right side of the line from an ambush marketing perspective, and ensure that the restricted event hashtags or emojis are included.

Claire Jones is a Trademark Attorney at Novagraaf in London