At the 2010 FIFA World Cup, “ambush marketing” made headlines again.
“Ambush marketing” represents a special type of marketing campaign in which companies cleverly connect their products or brands with a popular, often athletic, event such as the World Cup. The scammers often try to get a free ride without paying sponsorship fees but by tricking consumers into believing they are an official sponsor of the event. From a legal point of view, Ambush Marketing ranges from creative strategies that do not break any law to clearly illegal uses of logos, phrases, slogans and the like.
Sport as the main target
McDonald’s was the official sponsor of the Beijing Olympics. But in the run-up to the games, KFC used the marketing slogan “I love Beijing” while Pepsi replaced its usual blue cans with red ones “to show respect for China’s year.”
During the 1996 Atlanta Olympics, in reference to its new mobile phone, Telecom New Zealand Ltd had success with an ambush advertisement containing the word “ring” (for the sound of a ringing telephone) arranged five times as the Olympic rings and at the Olympic Games. colors.
McDonald’s was also on the job during the 2006 FIFA World Cup. Their Austrian advertising campaign featured Federal Chancellor Wolfgang Schssel holding a red, white and red scarf (the colors of the Austrian flag) that read “AUSTRIA IS THE WORLD CHAMPION “.
The 2010 FIFA World Cup
For the 2010 World Cup, FIFA was very busy trying to ensure that only official sponsors advertised their brands in connection with the event.
dutch girls
They were all over the media: the 36 women who attended the Netherlands-Denmark match in South Africa wearing matching orange dresses adorned with the “Dutchy” beer logo. The Bavaria brewery supplied the dresses for promotional purposes during the FIFA World Cup. The problem is that Bavaria was not an official sponsor of the 2010 World Cup; Budweiser, a competitor, was. The stunt was a good example of illegal ambush marketing. The women were escorted out of the stadium, but the goal (and more) had been achieved: more exposure to Bavaria’s trademark without having to pay official sponsorship fees.
Air Kulula
Kulula, a South African airline that was not an official sponsor, placed advertisements with the slogan: “UNOFFICIAL NATIONAL CARRIER OF ‘YOU-KNOW-WHAT'”. The ad featured the national flag, soccer balls and a special type of plastic horn used by South African fans at soccer matches (so-called “vuvuzela”). Kulula is generally known in South Africa for its humorous advertising. According to various reports online, Kulula was warned by FIFA that the combined use of these attributes created an unauthorized association with the event and was illegal.
Kulula reacted to the warning by placing new advertisements with the tagline “NOT NEXT YEAR, NOT LAST YEAR, BUT SOMEWHERE IN-BETWEEN.” The new ad features a bridge that resembles Cape Town’s World Cup stadium and golf tees that look like vuvuzela with the accompanying text “Definitely, definitely a golf tee,” and other images with humorous commentary.
Although all these activities can be considered ambush marketing in the advertising sense, from a legal point of view we must differentiate.
direct vs. indirect ambush marketing
Direct ambush marketing activities, such as the illegal and unauthorized use of a registered logo in product marketing, or a false or misleading claim to be an official sponsor of an event, are clearly violations.
Indirect ambush marketing, on the other hand, is more subtle and falls into a legal gray area. Mercedes’ 1997 New York City Marathon ambush indirect marketing campaign is famous. Although Toyota was the marathon’s official automotive partner, Mercedes had its name written in the sky above the event by planes.
Another example is Media Markt’s “We’ll get the title” campaign at the 2006 FIFA World Cup in Germany, or the aforementioned KFC slogan “I love Beijing”.
Clever indirect trappers link the sponsored activity to your brand without violating trademark or copyright rights. The question is whether the campaign gives rise to illicit consumer associations or other infringements, such as unfair competition.
Trademark Protection
Ambush clearly violates intellectual property laws when trademarks are used without a contractual right or license and trademark rights are infringed. According to the Austrian Trademark Protection Act (Markenschutzgesetz; MSchG) not only the use of an identical sign but also the use of a similar sign with likelihood of confusion may be illegal. The protection of reputable brands is even stronger. The owner of a renowned trademark may request third parties to refrain from using an identical or similar sign for products or services that are not similar to those protected by the trademark.
unfair competition
Supplementary to Trademark Law, Designated Regulations of the Austrian Law Against Unfair Competition (Gesetz gegen Unlauteren Wettbewerb; UWG) supplement copyright law. Unfair business activities include deceptive business practices (Sec. 2 UWG), imitation marketing of corporate brand names (Sec. 9 UWG), and other unfair business practices that fall under the general clause of Sec. 1 UWG. Furthermore, according to the Austrian Supreme Court, unfair exploitation of the good reputation of an event or false claims in advertisements that mislead the public about the status of official sponsor of the ambusher can be considered unfair competition.
Copyright and personal rights
Intellectual creations in the area of literature, photography, music and art enjoy (without registration) copyright protection under the Austrian Copyright Act (Urheberrechtsgesetz; UrhG). Personal rights, such as the right to one’s own image, can also be violated by an advertising campaign (see Chancellor Schssel example above).
remedies
For the holder of intellectual property rights, Austrian law provides remedies such as preliminary or permanent injunction, compensation, disposition orders and destruction or publication of the judgement. The rights holder can also initiate criminal proceedings against the infringer in various malicious cases.
However, ambush marketing campaigns are usually short-lived. Partners for the 2010 World Cup will end in July when the event ends. That means a court order would likely come too late. Even preliminary injunctions don’t provide much protection in the ambush competition. Therefore, ambush marketing cases are rarely actionable and the claimant will usually be referred for damages, but damages are difficult to prove.
Schönherr
contacts
ruth brandsttter
Telephone: +43 1 534 37 4079
Email: [email protected]
margit nemetz
+43 1 534 37 125
E: [email protected]
