Ambush marketing and promotions around major sporting events

Marketing and promotional activities surrounding World Cups and similar sporting events can be highly lucrative and, as a result, are always tightly regulated. With special Russian legislation in force, the 2018 World Cup in Russia will be no different.

With more than one billion fans tuning in to watch the final of the 2014 FIFA World Cup in Brazil, reaching a global in-home audience of 3.2 billion people, it is no wonder that companies from all over the world are keen to try to get a slice of the action at high profile sporting events. A small few will be official partners, meaning they are granted specific marketing opportunities and the right to use certain intellectual property rights in return for significant financial or other contributions. Others will attempt to "piggy-back" on the event in clever ways where they are unable or unwilling to pay the high financial costs of official partnership.

So, what can companies do and not do in terms of marketing and promotional activities at major sporting events, including the upcoming 2018 FIFA World Cup in Russia?

Ambush marketing and the law

Ambush by association

This is a planned attempt by a third party to associate itself, directly or indirectly, with the World Cup and/or participants to try to gain the recognition and benefits associated with being an official partner.

Key example - A week before the 2014 World Cup began, Beats by Dr Dre, an electronics and headphones company, released a YouTube clip called "The Game before the Game". This showed a variety of World Cup stars preparing for the competition while pictured with the brand's headphones. As Beats by Dr Dre was not an official sponsor, it was accused of taking the spotlight from Sony, the official sponsor of the competition. However, no official action was ever taken, mainly because there was no actual reference to the event.

The Law

There are several legal controls used to try to stop ambush by association, including:

• Trade mark, Copyright & Designs laws – if official trade marks or other intellectual property rights owned by FIFA are used in any unofficial advertising, FIFA is entitled to bring a claim for infringement (including an injunction and damages). FIFA has over 130 registered trade marks in Russia alone, including RUSSIA 2018, the host city names (+ 2018) and the official slogans and mascots. It also has a number of trade mark registrations covering the EU (including the UK) as well as other key jurisdictions worldwide, both in English and local languages. Copyright and/or design rights might also subsist in works such as slogans, mascots, theme tunes and broadcasts in various countries. As a result, FIFA's intellectual property protection is extensive. It is worth noting that participants in the event, such as the teams and players, are also likely to have a number of intellectual property rights protecting items such as their names, logos, badges, mascots, slogans and images.
• Unfair Competition & Passing Off – if a third party tries to 'piggy-back' on the reputation of the event or participants, for example, through creating the impression that they are an official partner or sponsor, a claim may be asserted for passing off in the UK or unfair competition in other countries (depending on local laws). This includes the use of images of players.
• Special Legislation – Federal Law No. FZ-108 was enacted in Russia specifically for the World Cup 2018. Among other things, it establishes an offence of "unlawful trade", committed where any products or services are associated, directly or indirectly, with FIFA or the World Cup without prior permission. This could, therefore, be committed through use of the official trade marks, or through the use of advertising that provokes a wrong association. As this is a very wide provision, local advice should always be sought prior to launching a campaign targeting or taking place in Russia. By extension, local law always needs to be carefully considered, whatever the jurisdiction at which marketing is targeted.

Ambush by intrusion

This type of ambush marketing involves the act of direct marketing within official events themselves, without prior authorisation. Here, companies seek to gain a marketing or economic advantage by targeting the audience present at the event and watching via broadcast media.

• Key example - Bavaria Brewery organised the entry of 36 female models (disguised as fans) into a 2010 World Cup match. During the game, they simultaneously revealed bright orange miniskirts, in line with the company's advertising campaign in the Netherlands. Despite attracting significant exposure as a result of the stunt, two arrests were made.

The Law

While it can be difficult to stop, there are a number of legal measures used to limit ambush by intrusion, including:

• Contractual Controls – the terms and conditions under which tickets are sold typically provide that the display of any commercial messages without prior authorisation is prohibited. Moreover, contractual terms will usually be in place with teams, staff and volunteers (and so on) so that they cannot use their potentially wide media exposure to pursue marketing and economic ends.
• Special Legislation – the World Cup 2018 gives us the example of Russia's Federal Law No. FZ-108 which provides that any advertising or trading within a two-kilometre radius of a stadium on a match day is prohibited, unless prior approval has been sought from FIFA or its nominees. If prior approval has not been sought, there is a risk that the offence of unfair competition or unlawful trade may have been committed. Again, local advice should be sought if you plan to engage in such activities during the World Cup.

General advertising

In addition to the above, companies should be aware of the general provisions regulating advertising in the UK and elsewhere. Key things to note for the UK include:

• The CAP (UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing) and BCAP (The UK Code of Broadcast Advertising) contain general rules prohibiting misleading advertising.
• Any misleading advertising may also fall foul of consumer protection, comparative advertising and other laws in the UK.

Tickets and prize draws

Although holding prize draws or competitions for sporting event tickets seems like an appealing prospect, it is unlikely that companies will be able to do so for two main reasons:

• Transferability of Tickets – there are usually strict rules governing the transferability of tickets. For example, World Cup tickets include an express prohibition on any reselling or transfer and on offering or advertising tickets for resale or transfer, subject to certain exceptions. Ticketholders are usually only permitted to transfer tickets via an official resale platform.
• Ticket Promotions – terms and conditions will be attached to tickets which typically prohibit them being used for any promotion, advertising, fundraising, auction, raffle or any other similar commercial or non-commercial purposes. This includes the use of tickets as a prize in any contest, competition, game of chance, lottery or sweepstake.

As a result, it is crucial that tickets are checked to ensure any promotional campaigns remain in compliance with any terms and conditions.

Key points to consider before marketing tied to major sporting events

Unless you are an official partner:

• Be aware of FIFA's and other's extensive trade mark portfolios and ensure that you do not use any marks without prior permission. Take specific advice on the use of any words or images that may be subject to trade mark, copyright or design protection or otherwise legally protected.
• Avoid any promotional activity that may suggest an association with the event or its participants. This includes promotional activities online and on social media. Consumers should not be led to believe there is a connection between your brand and the event or its participants if you are not an official partner. Take specific advice if unsure.
• Check any ticket terms and conditions and ensure that any promotions are in full compliance. It is more than likely that you will be unable to use tickets in prize draws and competitions.
• Seek local law advice.

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