Is it allowed, not allowed, or just clever?
Everyone at Albright IP is joining the rest of England holding their breath; after 52 years can England finally bring the World Cup and football “home” again?
Unfortunately, none of us here are experts in respect of the football, and we certainly don’t want to jinx the outcome. Therefore, in lieu of attempting to provide a detailed commentary on the beautiful game, the Trade Marks team has busied itself considering the marketing and advertising trends which permeate this type of international sporting event.
FIFA (The Fédération Internationale de Football Association) accrues nearly 30% of their annual revenue from licensing the marketing rights for the World Cup alone. The World Cup has official sponsors who are expressly permitted to use FIFA’s Intellectual Property rights and pay a “pretty penny” for the privilege.
However, it isn’t just official sponsors who have been capitalising on the euphoria being generated by the World Cup. Ambush marketing is a strategy whereby rival companies attempt to associate their products with an event that already has official sponsors, without signing up to an exclusive and expensive licensing agreement, i.e. without becoming an official partner.
Ambush Marketing can take three distinct forms:
- Ambush by Association: when a brand-owner associates itself with an event by using creative methods to mislead the relevant consumers to believe or assume they are an official partner/ sponsor.
- Ambush by Intrusion: When a brand-owner intrudes or interrupts an event to gain prominent exposure, targeting the audience themselves.
- Opportunistic (Ambush) Marketing: Taking advantage of an event to interject, often in a humorous or tongue-in-cheek manner, in order to become part of the “conversation”.
By way of illustration, we have pulled together a ‘top three’ of the most creative/ bizarre examples of ambush marketing associated with football events over recent years:
Piggy-backing on the Luiz Suarez biting scandal of the Brazil World Cup 2014, affectionately known as “Bitegate”, in which Suarez “allegedly” bit Giorgio Chiellini during the Uruguay v Italy game. Snickers a well-known brand of chocolate confectionery known for its “You’re not you when you’re hungry” slogan, tweeted an image of a bitten-into Snickers bar, with the text: “More satisfying than Italian”.
‘Bavaria Beer’ Orange Dress Stunt:
This took place during the Netherlands v Denmark game in the 2010 South Africa World Cup stadium. The Dutch brewer Bavaria organized a stunt involving 36 young blonde models all dressed in identical bright orange mini-dresses (which were part of a gift pack offered by Bavaria Beer). All 36 of the women where ejected from the stadium and two of the participants were arrested. The much publicised heavy- handed approach of FIFA led to public outcry, and probably increased the amount of coverage enjoyed by the Bavarian Brewery.
‘Newcastle Brown Ale’ Super Bowl Ad Campaign:
The Super Bowl is one of the most expensive advertising opportunities in the world costing upwards of $5 million for a 30 second advertising slot. In 2015, Newcastle Brown (now owned by Heineken) created a spoof entry to the Doritos “Crash the Super Bowl Contest” (a spoof itself). This is a commercial contest for independent filmmakers, essentially allowing them an opportunity to make an unofficial advertisement for the Super Bowl. Newcastle Brown, which is now widely known for ambushing the Super Bowl created its own spoof ad in which a man searches for an unspecified brand of crisps amidst a torrent of Newcastle Brown Ale product placements. The result was an elaborate spoof upon a spoof:
In response, to the rising popularity of ambush marketing, and the extremes that marketeers will go to, the organising bodies of key sporting events including FIFA have pushed and lobbied host countries to enact laws to strengthen their Intellectual Property rights prior to and surrounding major events. This lobbying of national Governments is to facilitate the collection of high licensing fees, based upon exclusivity. However, the practice is controversial, and has led to the granting of preferential and perhaps unfair monopolies. For example, the enactment of special legislation such as London Olympic Games and Paralympic Games Act 2006. This Act banned the use of the words “2012” and “Games” by non-sponsors, either together, or in association with other words or concepts relating to the 2012 Summer Olympics. For many on the side-lines, this was a step too far, and it had an adverse impact upon the freedom of choice and expression.
Ambush marketing is a rapidly developing area of law, expounded by the speed at which a message can be delivered via social media, regardless of its legitimacy. The organisers of events and the authorised sponsors must weigh up taking forceful steps to counter this activity with the negative impact of being viewed as overly aggressive ‘kill-joys’.
It is always prudent to seek legal advice before commencing a campaign that could be interpreted as ambush marketing, as there is only a fine line between referencing or alluding to an event and inferring that there is a legitimate official association.
By the way you have just fallen victim to our attempt at ambush marketing. Good luck England!