1. What is ambush marketing?
There is no established definition, but generally it can be said that ambush marketing occurs where an advertiser promotes its brand, products or services in a way that takes advantage of the marketing activity and goodwill surrounding a high profile event (typically a prestigious sporting event such as the Super Bowl, the Olympic Games, the FIFA World Cup, the UEFA Women’s Euro, Wimbledon or The Masters), despite not being an official sponsor or licensee for the event.
Accordingly, ambush marketing encompasses a wide variety of marketing techniques, with most falling into two categories: (i) ambush by association; and (ii) ambush by intrusion. Ambush by association occurs where an advertiser uses a promotion to suggest that the advertiser has an official connection with an event, its organisers or its participants when it does not. Ambush by intrusion occurs where an advertiser seeks to gain exposure at or near the physical location of the event.
The lack of an established definition of ambush marketing means that ambush marketing can be interpreted widely or narrowly. Unsurprisingly, in respect of the FIFA World Cup 2022, FIFA has adopted a wide definition. FIFA considers ambush marketing to be activities that try to take advantage of public interest in a particular high profile event by “creating a commercial association and/or seeking promotional exposure without the authorisation of the event organiser”. According to FIFA’s Brand Guidelines, activities that create an “undue commercial association” (i.e., that make it appear as if the company is associated with FIFA or the World Cup 2022 when there is no official relationship) “are not permitted and are subject to legal measures”.
2. What legal measures may apply to ambush marketing?
There are various legal measures that may apply to ambush marketing, either directly (such as through legislation) or indirectly (such as through general advertising regulations and civil protections for proprietary rights).
A. Direct legislation
Typically, national laws provide little direct protection against ambush marketing. In the UK, for example, there are no laws that directly prohibit ambush marketing.
However, it is increasingly common for the organisers of prestigious international sporting events to require that the host country agrees to pass special legislation for the event to protect against ambush marketing – this is, for example, a requirement for any nation bidding to host a summer or winter Olympic Games.
Prior to the London Olympic Games 2012, the UK introduced the London Olympic Games and Paralympic Games Act 2006 in part to provide additional protections against ambush marketing. The Act provided additional legal protection given to the Olympic symbol, as well as expansive protections in relation to intellectual property, words and phrases associated with the games. It also imposed controls on advertising and street trading around Olympic venues. This is a key advantage offered by event-specific legislation, as ambush by intrusion is rarely caught by general advertising legislation, so additional powers are needed to give event organisers (and their sponsors) the ability to enforce third party advertising exclusion zones both in and around stadiums and also in relation to broadcast media for the event.
Whilst the powers introduced by event-specific legislation are typically far-reaching, there are some significant limitations. First, event-specific legislation typically has a narrow window of applicability, encompassing the period prior to and during the event in question. For example, the advertising provisions of the London Olympic Games and Paralympic Games Act 2006 no longer have any effect following the end of the London Olympics period. Second, event-specific legislation normally has limited territorial application: ambush marketing campaigns that stay beyond the event host country’s borders are unlikely to be caught under such event-specific legislation. This means that even where specific legislation is introduced to protect against ambush marketing in relation to an event, there is likely to be a gap in direct legal protection that advertisers may take advantage of. For example, in relation to the World Cup, whilst seeking promotional exposure in connection with the World Cup without FIFA’s authorisation is prohibited under FIFA’s brand guidelines and in Qatar (as explored in further detail below), it is not directly prohibited under UK law.
B. Indirect legislation, regulations, codes
In the UK, although there are no explicit advertising rules regarding ambush marketing, some forms of ambush marketing may be caught by rules in relation to misleading advertising.
For example, the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) provides that “marketing communications must not materially mislead or be likely to do so” (Rule 3.1), and the Advertising Standards Authority even releases guidance on ambush marketing from time to time (see, for example, “Sportsmanlike Advertising for the Euros and Olympics”).
This means that advertisers must be careful not to mislead consumers into believing that there is an official connection between the advertiser and a particular event, organiser or participant (such as a team or player) when there is no such connection.
C. Passing off and image rights
The UK does not have a law of privacy or other codified system for the protection of so-called image rights – the rights to prevent unauthorised use of an individual’s name, likeness or personal indicia. Nonetheless, using an image of a player or team in a commercial promotion without authorisation may infringe the player’s or team’s rights under the tort of passing off. This tort prohibits conduct that may mislead consumers as to the origin of goods or services, intentionally or otherwise.
This means that advertising which misleads or is likely to mislead consumers into believing that there is an official connection between the advertiser and a particular event, organiser or participant when there is no such connection, for example, marketing that uses the image of a player, may be caught under the tort of passing off.
Under the tort, claimants can obtain injunctions to halt ambush marketing campaigns, as well as damages for loss of profit and damage to reputation/goodwill. However, it is difficult to successfully bring a claim for passing off, as the claimant must show that the misrepresentation in question caused damage to goodwill in their business or that such damage was reasonably foreseeable.
D. Proprietary rights
One key way that event organisers seek to close the gap in direct protection against ambush marketing via legislation is to use trade marks, copyright, design rights and other intellectual property protections. FIFA is well known for taking steps to protect its intellectual property, with logos, mascots, mottos, the trophy and even phrases registered for trade mark and other protections around the world.
For example, in the UK, the phrases “World Cup”, “World Cup 2022”, “FIFA World Cup 2022” and “Qatar 2022” are all FIFA registered trade marks. This means that FIFA has the right to the exclusive use of these marks in connection with the goods and services for which they are registered, and can sue for trade mark infringement those who use identical or similar marks in the course of trade without authorisation.
For example, in the UK, the phrase “World Cup” is registered in relation to football boots, so FIFA could sue for trade mark infringement where the phrase “World Cup” is used on football boots or a similar item without its permission. Notably, advertisers should still take care if using this phrase as promotional use of “World Cup” or “#WorldCup” may increase the likelihood of misleading consumers into believing that an advertiser has an official connection with the World Cup 2022.
E. Other jurisdictions
Regulations on ambush marketing are territorial and different jurisdictions have taken different approaches. This lack of harmonisation means that brands must take the time to understand how a campaign is likely to be received in key target jurisdictions and be particularly careful as to where a campaign is targeted.
United States
Similar to the legal landscape in the UK, while a singular statute does not control ambush marketing in the United States, the practice can run afoul of a web of federal and state laws that cover unfair competition and false advertising. The Lanham Act of 1946 prohibits trade mark infringement, trade mark dilution, false designation of origin, and false advertising. While advertisers are often savvy enough to avoid directly infringing upon an event organiser’s or sponsor’s trade marks, ambush marketing can violate Section 43(a) of the Lanham Act where the materials or activity falsely conveys a message that the company engaging in the activity is an official sponsor of, or otherwise formally affiliated with, the event. This can occur by using a name, word, symbol or device without permission to create confusion (i.e., by misleading or deceiving consumers) regarding a connection, affiliation or sponsorship. Examples of actions that may give rise to a Section 43(a) violation in the context of ambush marketing not only include use of the event’s name and logos, but can also include awarding tickets to an event as part of a promotion, using an event’s hashtag, creating a hashtag or caption that includes the event’s name, and even posting content from the event on the marketer’s social media page.
At the state level, ambush marketing activities may violate certain state commercial contract and unfair competition laws. State statutes such as New York’s Unfair Trade Practices Act, Florida’s Deceptive and Unfair Trade Practices Act, and California’s Unfair Competition Law cover misleading or deceptive advertising acts, which would include misleading or deceiving consumers into believing that the brand is associated with an event through its marketing activities without prior permission. Event organisers have looked to these state laws when filing claims against ambush marketers, including actions brought by Major League Baseball and the NCAA.
As is the case elsewhere, ambush marketing can be prevalent in the United States during the Olympic Games. Under the Ted Stevens Olympic and Amateur Sports Act of 1998 (OASA), which expanded rights granted to the United States Olympic Committee (USOC) under the Amateur Sports Act of 1978, the USOC can sue (and has sued) advertisers for violating Section 43(a) of the Lanham Act by creating a false association with a USOC or International Olympic Committee (IOC) sign, symbol or other identifying marks. Another tool the USOC has to combat ambush marketing is Rule 40 of the Olympic Charter. Initially, Rule 40 provided strict restrictions against athletes and other individuals related to the Olympics from working with non-Olympic sponsors during the designated blackout period (i.e., a specified period of time before and during the Olympic Games). However, the IOC and the national committees have recently taken steps to relax some of the Rule 40 restrictions.
Qatar
FIFA typically imposes significant obligations on host nations, including the requirement to amend local laws to accommodate FIFA’s licensing requirements. Accordingly, Qatar has enacted Law No. 10 of 2021 on Measures for Hosting the FIFA World Cup Qatar 2022, which we understand not only prohibits the use, reproduction, imitation or modification of any of FIFA’s intellectual property (such as FIFA’s logo, motto and mascot) but also protects FIFA’s so-called commercial advertising rights in Qatar. This means that where an advertiser’s marketing or commercial activities in Qatar suggest or give the impression that there is any relationship between the advertiser or their products or services and FIFA, the Supreme Committee for Delivery and Legacy (Qatar 2022) or the World Cup 2022, this is likely to infringe Qatari law.
3. How likely is enforcement action?
As noted above, FIFA is well known for being protective of its intellectual property. In practice, it is unusual for FIFA to file charges. Instead, FIFA typically prefers to achieve the discontinuation of any intrusive marketing or the removal of any offending advertising via the use of cease and desist letters and the threat of significant damages. This is reflected in FIFA’s Brand Protection Guidelines, which state that FIFA prefers to “engage in direct personal contact” as opposed to “legal threats and sanctions” and that it “will generally not resort to such legal action without an in-depth analysis of the intention, scale, and commercial impact of the matter at hand”.
Early reports indicate that FIFA is adopting much the same strategy for the World Cup in Qatar as for previous World Cups. In an extreme example of ambush marketing, tech company OnPassive released a video on YouTube in early September claiming to be a sponsor of the FIFA World Cup Qatar 2022. The video was removed less than a week later, with it being reported that OnPassive received a cease and desist letter from FIFA.
Marketing around the World Cup is already on the rise, and the first blow of the whistle for kick off on 20 November will no doubt spark a media frenzy. With so much buzz, FIFA simply cannot chase every advertiser seeking to take advantage of consumer attention on the World Cup 2022. So who will be a priority for FIFA?
Naturally, FIFA partners and official sponsors, such as Budweiser, who have paid significant sums to FIFA to be associated with the World Cup, will want to see that competitors are not given a carte blanche to associate themselves with the World Cup for free. Accordingly, it is likely that competitors of official sponsors who conduct eye-catching ambush campaigns around the World Cup will be at higher risk of legal action from FIFA. Notably, when Dutch beer brand Bavaria staged an ambush intrusion event at a Denmark v. Netherlands match during the 2012 FIFA World Cup in South Africa, involving Dutch models disguising themselves as Danish fans then revealing their Bavaria orange promotional outfits once the match had begun, FIFA filed criminal charges with South African police. Charges were ultimately dropped with reports of a settlement between the parties, but this demonstrates how willing FIFA is to take legal steps to protect both its sponsors’ interests and its own interests in being able to demand high sponsorship fees.
The likelihood of legal action will also depend on the nature of any alleged infringement. Where an advertiser has used a FIFA trade mark, such as “World Cup 2022”, the FIFA logo, mascot or other copyright protected item without proper authority or made a claim that is manifestly untrue (for example, that it is an official sponsor when it is not), the cases for trade mark infringement, passing off and misleading advertising are relatively clear cut. Such adverts are likely to feature higher up on FIFA’s to-do list.
By contrast, the assessment of whether a football-themed advert is likely to mislead consumers into believing that the advertiser has an official connection to the World Cup 2022 when it does not, is far more subjective. In such cases, it will be necessary to assess both the content and the wider context of the advert (such as timing and placement) to determine whether any infringement is likely. The higher the risk of misleading consumers, the more likely it is that the advertiser may face legal action, whether from local regulatory authorities or FIFA.
4. Practical steps to avoid infringement
If you’re thinking about launching a football-themed advertising campaign this November, consider our four top tips to help to mitigate the legal risks:
A. Don’t use any FIFA, World Cup related or third party trade marks, logos, mottos, designs, images, footage or trade dress in any promotional materials
This means, for example, avoiding the phrases “World Cup”, “World Cup 2022”, “FIFA World Cup 2022” or “Qatar 2022”, which are all registered trade marks in the UK. Remember that use of a trade mark in a hashtag without permission from the trade mark or rights holder can also result in an infringement: it’s important that social media teams and influencers are appropriately briefed.
Advertisers can seek to mitigate the risk of trade mark infringement by adopting creative approaches to refer to the event in question. For example, in the United States, advertisers often refer to “The Big Game” instead of using the official name of the annual final playoff game of the American National Football League.
B. Unless you’re an official sponsor or partner, avoid suggesting that you are officially connected to the World Cup 2022
Ambush marketing presents an opportunity for marketing and legal teams to work together to find the fine line between, on the one hand, pushing the boundaries of acceptable ambush marketing and, on the other hand, going too far. As noted above, there are many factors at play in an assessment of whether an advert may mislead, and each advert should be assessed on a case-by-case basis, taking into account both the content of the advert and the wider context. If in doubt, seek legal advice.
C. Avoid using any imagery associated with teams or players
This would likely require consent from the copyright holders, teams, players and FIFA. Use without authorisation could result in significant damages.
D. Don’t push the limits in Qatar
If you are working on an advertisement or campaign that will roll out in Qatar, and particularly any physical campaigns within two kilometres of a World Cup 2022 stadium, it will be important to take legal advice from local lawyers to ensure that all adverts comply with local law.
Given the heightened risk of enforcement action being taken in Qatar, consider geo-blocking any social media campaigns and any associated promotional activities that may contravene local laws from appearing in Qatar.
In-Depth 2022-372
