What's the issue?
With more than 1.9 billion and 3 billion fans tuning in to watch the UEFA Euro 2020 and the Tokyo 2020 Olympic Games (respectively), it is no wonder that businesses 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 (IP) rights in return for significant financial or other contributions. Those who are not official sponsors may attempt to "piggy-back" on the event in clever ways, often called ambush marketing.
Here, we consider the two main types of ambush marketing - ambush by association and ambush by intrusion - including what they are, the legal issues they can engender, and what businesses can do to ensure that they stay within the rules during the Olympics and Paralympics in Paris and the UEFA Euro 2024 in Germany this summer.
What is ambush by association?
This is a planned attempt by a third party to associate itself, directly or indirectly, with a major event and/or its participants, as a marketing strategy, without permission. It sometimes involves the use of trade marks or other IP rights associated with the event but can involve the use of more generic terms.
-
A good example comes from the 2020 football Euros. Online retailer Zalando displayed a large poster in the same square as the official UEFA Football Village in Rome, featuring a blank football shirt, alongside the flags of the 24 participating nations, the Italian phrase "Chi sarà il vincitore?" ("Who will be the winner?") and the Zalando name and logo. The Italian Competition Agency successfully claimed that the promotion breached recently introduced legislation prohibiting "parasitic activities" and Zalando was fined €100,000.
What is ambush by intrusion?
This involves the act of direct marketing within official events themselves, without prior authorisation. It can include actions aimed at gaining exposure on television and internal screens, giving away free products to spectators, and using aeroplane banner advertising near to stadia.
- A good example is the organisation by Bavaria Brewery of the entry of 36 female models, disguised as fans, into a 2010 World Cup match. During the game, the models simultaneously revealed bright orange miniskirts in line with the company's advertising campaign in the Netherlands. The stunt attracted significant exposure. Two arrests were made.
-
Another example, this time of a successful campaign, involves Mumm champagne and the 2018 Winter Olympics. Mumm gave a bottle of its champagne to any athletes who struck Usain Bolt's famous pose on the podium. Bolt was not a participant in the Olympics and there was no relevant mention of Mumm champagne at the event, so no action was taken.
What are the potential legal issues?
There are several ways event organisers, participants, regulators and authorities can try to stop ambush by association and intrusion, including relying on the following.
Trade marks
The International Olympic Committee (IOC) and UEFA each have hundreds of applications and registrations around the world (including in the UK, France and Germany) for various trade marks. For the IOC, these include registrations in the UK and/or EU for THE OLYMPICS, OLYMPIC, OLYMPIC STADIUM, OLYMPIA, OLYMPIAD, OLYMPIAN, Olymp, PARALYMPIC, various PARIS 2024 logos, as well as various logos/images of the Olympic rings, medals, flames and mascots. For UEFA, these include UK and/or EU registrations for UEFA, EURO 2024, THE EUROS, a BERLIN 2024 logo, a hashtag football logo, and various images of trophies and footballs.
Tournament participants may also have trade mark applications and registrations protecting their names, logos, badges, mascots, slogans, images and so on. Examples include TEAM GB and its logo, which are both registered in the UK.
Any unlicensed use of such trade marks in the course of trade might constitute trade mark infringement. Given that various seemingly generic words – such as THE EUROS – are protected, advertisers should not assume that particular words are free to use. Likewise, using a word in a clever or descriptive way – such as an "olympic breakfast" – might not avoid infringement. Care should be taken to clear the use of brand elements on goods/services and in advertising to minimise the risk of infringement.
Passing off
Trade marks also receive protection in the UK under the law of passing off. Since this protects the goodwill attaching to goods/services, it protects registered and unregistered trade marks.
The same sorts of issues as mentioned for trade mark infringement above also apply in the case of passing off. In addition, the law of passing off can be used to prohibit any suggestion that a person is an official partner or sponsor (or that a product or service is officially endorsed), when it is not. Such a suggestion could arise from, for example, the use of images of particular sports persons, team kits, flags or logos on goods/services or in advertising.
Unfair competition
Both France and Germany have laws prohibiting unfair competition. An unfair competition action based on French tort law (article 1240 of the French Civil Code) will allow both the Olympic Games organiser and official partners to fight against ambush marketing as soon as a third party takes an undue advantage, without incurring any costs, of the media and economic spin-offs generated by the efforts and investments of those organisers and official partners. French judges will sanction any excessive use of the principle of freedom of trade and free competition.
While a mere reference to a sporting event is probably not enough to constitute a parasitic act, French judges will condemn the abusive use of terms such as “sponsor” and “official partner”, as well as the use of trade marks, expressions and symbols relating to the event or any other activity where there is an illegitimate association made with the Olympic Games in the public’s mind.
The position is similar in Germany, where ambush marketing may be considered an unfair commercial practice. Under the German Act Against Unfair Competition (UWG) it constitutes an unfair commercial practice to exploit or impair the reputation or goodwill of a third party in an unfair manner or to create a misleading impression among the relevant public that there is official connection/sponsorship between the advertiser and eg the football Euros. Therefore, companies should avoid creating the impression that they are somehow sponsoring an event or are otherwise officially affiliated with it.
As a general rule, the mere presence of advertising in close proximity to an event or the mere reference to an event will not, of itself, mean that an official relationship is implied. Furthermore, the German Federal Court of Justice has held that German consumers regularly assume that official sponsors for sporting events such as the Olympics will emphasise their (official) connection to the sporting event in their advertisements. Therefore, the absence of a reference to being an official sponsor mitigates the risk of creating a misleading impression. It is likely that the same assumption would apply to adverts in connection with the football Euros. Nonetheless, official imagery, slogans, trophies etc should not be used in marketing.
Design laws
Designs protect the appearance of the whole or part of a product, as well as packaging and logos. Designs in the UK and EU can be registered or unregistered. Designs might exist in items such as the appearance of team kits, equipment, medals/cups/trophies, and logos.
The use of a registered or unregistered design (or any design which does not form a different overall impression) can constitute infringement. Since the design itself is protected, there can be infringement even if the protected design is incorporated into a different product.
Care should be taken to consider any visual elements used in marketing and promotional activities to ensure that no design rights are infringed. Since rights can exist in unregistered designs, ascertaining what is protected can be difficult.
Copyright
Copyright might subsist in works such as slogans, mascots, logos, kit, theme tunes, photographs and broadcasts in various countries. The IOC, UEFA, and participants might all own copyright in works. Care needs to be taken to ensure that no works protected by copyright are copied.
Since there is no register for copyright in the UK, France and Germany, it can be difficult to ascertain what is and is not protected. France, in particular, applies a relatively low threshold for a work to be protected as a copyright work, meaning the courts tend to easily grant copyright protection to authors. It is therefore an important right to consider.
Sui generis property rights
The French Sport Code grants sports event organizers and federations a specific “sui generis” property right, ie the right to exploit the sporting events or competitions they organise. According to the case law, this provision prohibits “any form of economic activity whose purpose is to generate a profit and which would not exist if the sporting event which is its pretext or necessary support did not exist”.
This right is broad and can be used to oppose any campaign by an advertiser making a simple association of ideas between its products or services and the sporting event in question. By way of example, the publication of a book dedicated to the Formula 1 racing at Le Mans (24h du Mans) was prohibited on this basis.
Advertising and consumer protection rules
Advertising rules might also come in to play. In the UK, the CAP and BCAP codes prohibit misleading adverts, and the Consumer Protection from Unfair Trading Regulations 2008 (CPR) prohibit misleading commercial practices and various other "blacklisted" practices. Since the latter derive from EU law, similar provisions exist across all EU member states, including in France and Germany.
Violations of the CPR are enforced by the CMA (currently, via court action) in the UK and violations of equivalent legislation in Germany, by competitors or consumer protection associations which both have standing to sue. Any advert or promotion that misleadingly suggests that the advertiser is connected with the Olympics or football Euros could fall foul of these provisions.
The French self-regulatory advertising authority, the ARPP, has published its own guidance on ambush marketing risks in a public communication of February 2024. The ARPP considers that a commercial communication, referencing the Olympic games for strict information/news purposes is acceptable, to the extent that there is no ambiguity whatsoever as to a possible official sponsor status. According to the ARPP, any statement creating ambiguity about the brand's involvement in the organisation of the event is, however, not acceptable.
Olympic symbols
The Olympic Charter is a set of rules and guidelines for the organisation of the Olympic games. It provides that the IOC is the owner of all rights in and to the Olympic games and Olympic properties, including the Olympic symbol, flag, motto, anthem, identifications, designations, emblems, flame and torches, as well as musical works, audio visual works or other creative works or artefacts commissioned in connection with the Olympic Games by the IOC and others. The Paralympic Charter is similar and governs the Paralympics.
National Olympic Committees and Organising Committees agree to prohibit the use in their country of any Olympic/Paralympic properties contrary to the rules in the Charter. It is for this reason that most countries have specific legislation protecting the use of the Olympic properties (and any properties so similar as to be likely to create an association with them). In the UK, it is the Olympic Symbol etc. (Protection) Act 1995 (as amended by the London Olympic Games and Paralympic Games Act 2006); in France, the French Sport Code; and in Germany, the German Olympic Protection Act. In the UK and/or France, identifications protected include the words Olympiad(s), Olympian(s), Olympic(s), Paralympiad(s), Paralympian(s) and Paralympic(s), JO (Jeux Olympiques), PARIS 2024 and Olympic Games.
Certain uses of the Olympic/Paralympic properties are permitted including where the use does not suggest an association with the Olympic/Paralympic Games or movement. In the UK, this can be satisfied where the statement (a) accords with honest practices in industrial or commercial matters and (b) does not make promotional or other commercial use of a protected word by incorporating it in a context to which the Olympic/Paralympic Games and movement are substantively irrelevant. In certain countries, including the UK and France, breach of the legislation entails potential criminal as well as civil sanctions.
Rule 40
“Rule 40” of the Olympic Charter sets out rules that competitors, team officials and other team personnel must comply with to participate in the Olympic games, including how their person, name, picture or sports performances can be used during the games. It is particularly relevant for those who have sponsorship or similar arrangements in place with competitors (whether or not they are also official Olympic sponsors).
The French National Olympics committee (CNOSF) has published important guidance on how Rule 40 is to be implemented during the Paris 2024 games. This guidance includes specific rules and recommendations that brands and participants (competitors, team officials and team personnel) must comply with when making or creating commercial content in the run up to and during the Olympic games, including the issue of congratulatory messages by brands. The British Olympic Association has also published guidance, as has the German National Olympics Committee (the DOSB) (here). They should be read carefully.
Specific local legislation
Host countries for major sporting events usually enact specific legislation to regulate major sporting events.
While no specific local legislation has been enacted in Germany to regulate adverts in connection with the football Euros, UEFA requires host cities to designate several public places exclusively for UEFA EURO sponsors to advertise and to prohibit all other businesses from advertising in these spaces. Local authorities may choose to enact administrative orders regulating adverts in public spaces within the immediate vicinity of the stadia/official venues or to observe greater care in granting permits. Adverts violating administrative orders and/or other public laws (e.g. local building regulations and street laws) can be removed, and fines imposed.
France implemented a specific law in 2018, updated in May 2023, related to the organisation of the Paris 2024 Olympics and Paralympics. Some provisions permit outdoor advertising in specific areas (including on historical monuments), notably around competition sites, during a specific time period (which would normally be prohibited in France). Specific authorisation from the French authorities is required.
Contractual controls
The terms of sale applicable to the purchase of Paris 2024 tickets expressly prohibit buyers from performing any commercial or promotional activities within Olympics and Paralympics sites without prior authorisation, as well as using any images/sounds captured during the event, except for private and non-commercial purposes. The position is similar for the football Euros in Germany, where a ticket holder may not perform any activity for advertising or marketing purposes within a stadium.
It is also worth mentioning that ticket terms normally restrict the transferability of tickets (typically, except via official resale platforms) and the use of any tickets in any promotion, advertising, fundraising, auction, prize draw or the like. This means that it is usually not possible to give away tickets as a prize. The terms of sale of Paris 2024 tickets are very strict on this, specifying that such actions may give rise to civil and/or criminal liability. For the football Euros, the terms of sale explicitly state that the commercial use of tickets is reserved exclusively for official sponsors.
How can the risks be minimised?
To minimise the risks:
- Carefully investigate the IP position and consider the risks of infringing each type of IP right, alongside the risk of breaching other relevant laws and regulations. Take particular care to ensure that what seem like generic terms such as THE EUROS are not used. Any use of official/protected words, slogans, mottos, mascots, logos and the like should be avoided.
- Ensure that campaigns do not erroneously suggest sponsorship, endorsement or official partnership.
- Consider the risks in each jurisdiction where the advertising or promotional activity is taking place or to which it is targeted. Online advertising and promotions carry particular risks since they can be deemed to have been targeted at a number of countries.
- Remember that all forms of advertising and content may be caught, including online and on social media. Make sure that all internal teams are briefed including on the use of hashtags and other symbols. Remember that even messages of congratulation to official brand ambassadors can fall foul of relevant provisions.
- Take legal advice on specific campaigns or activities before launch. Often a campaign can be designed so that it is compliant, or the legal risks minimised. For example, vaguely alluding to an event or country without actually referring to it or using a parody can be acceptable depending on how it is done and provided that it does not go too far.
- Remember that there are often opportunities to legitimately piggy-back on major sporting events. Good examples include Zippo's use of imagery showing its lighter being used to relight the Olympic flame when it extinguished during the 2014 Winter Olympics and Oreo's tweet that "You can still dunk in the dark" during the 2013 Superbowl final power outage.
- Check any ticket terms and conditions to ensure that any promotions are in full compliance. There is limited – if any – right to use tickets for the Paris Olympics and football Euros as prizes.
- Remember that the consequences of getting it wrong can be significant. Remedies for IP infringement can include an injunction to stop the activity complained of (potentially an urgent preliminary injunction), significant damages, costs, plus the costs of any rebrand. There are also potential negative PR consequences.
