Marketing and promotional activities surrounding World Cups and other major sporting events can be highly lucrative and, as a result, are always tightly regulated. What must businesses do to ensure that they stay within the rules?
What's the issue?
With more than 3.5 billion fans tuning in to watch the 2018 FIFA World Cup in Russia, 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 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 businesses do and not do in terms of marketing and promotional activities around major sporting events, including the upcoming 2022 FIFA World Cup in Qatar? We consider the main types of activity businesses undertake and how to stay within the rules.
Ambush marketing
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.
For 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. No official action was ever taken, mainly because there was no actual reference to the event.
There are several legal controls used to try to stop ambush by association, including:
- Trade mark laws – FIFA has over 600 trade mark applications and registrations in Qatar and nearly 200 in the UK. The latter include FIFA, WORLD CUP, WORLD CUP 2002, Qatar 2022, various slogans, as well as images of the world cup, footballs and the official mascots. It also has a number of trade mark applications and registrations covering the EU as well as other key jurisdictions worldwide, both in English and local languages. The teams and players may also have trade mark applications and registrations protecting their names, logos, badges, mascots, slogans and images. If any such trade marks are used in any unofficial advertising (or otherwise in the course of trade), the owner might be entitled to bring a claim for trade mark infringement. Remedies could include an injunction (potentially an urgent interim injunction to stop the activity complained of), damages, costs and delivery up/destruction of infringing materials. It is worth remembering that unregistered trade marks also receive protection in various countries. In the UK, this is through the law of passing off (which protects the goodwill attaching to goods/services).
- Copyright laws – copyright might subsist in works such as slogans, mascots, logos, kit, theme tunes, photographs and broadcasts in various countries. Again, FIFA, the teams and players might all have copyright in various works.
- Design laws – designs protect the appearance of the whole or part of a product, as well as packaging and logos. It is the design itself that is protected (ie when used on any product). Designs in the UK and EU can be registered or unregistered. To be protected, the design must be new and have individual character. Design rights might exist in items such as the appearance of footballs, team kits, football boots and logos.
- Unfair competition & passing off – if a third party tries to 'piggy-back' on the reputation of an event or participants, for example, through creating the impression that they are an official partner or sponsor (or that the product or service is officially endorsed), a claim might be asserted for passing off in the UK or unfair competition in other countries. This includes the use of images of players or other official items such as team kits.
- Advertising rules – advertising rules might also come in to play, for example, the CAP and BCAP codes in the UK. A misleading advert might also fall foul of relevant consumer protection, comparative advertising and other laws in the UK.
- Special legislation in Qatar – Qatar’s Law No. 10 of 2021 on Measures for Hosting the FIFA World Cup Qatar 2022 implements special regulations to grant a very wide scope of protection to FIFA and its official sponsors in Qatar. As this is a very wide provision, local advice should always be sought prior to launching a campaign targeting or taking place in Qatar. By extension, local law always needs to be carefully considered, whatever the jurisdiction at which marketing is targeted.
It should be clear from the above that a number of legal issues need to be considered before any campaign is launched around the World Cup. The use of any third-party intellectual property rights needs special consideration to ascertain the risk of infringement. Even if no such rights are used, care needs to be taken to ensure that the content in question does not suggest official partnership, sponsorship or endorsement.
Despite the risks, it can be possible to "associate" with an official event if done in the right way. For example, a parody might be permissible depending on exactly how it is done (see here). Specific local advice should always be sought.
Ambush by intrusion
This involves the act of direct marketing within official events themselves, without prior authorisation. Here, businesses seek to gain a marketing or economic advantage by targeting the audience present at the event and watching via broadcast media.
For 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. The stunt attracted significant exposure. Two arrests were made.
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 message 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 – a special law is usually enacted to prohibit any advertising or trading within a certain-kilometre radius of a stadium on a match day, unless prior approval has been sought from FIFA or its nominees. We expect such a law is in place in Qatar. 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.
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 typically 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 other similar commercial or non-commercial purposes. This usually 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 others' 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. Consumers should not be led to believe there is a connection between your brand and the event or its participants. Also consider relevant advertising and other laws. Take specific advice if unsure.
- All forms of advertising and content can potentially be caught. This includes promotional activities online and on social media.
- 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.
