At the 2010 FIFA World Cup, “ambush marketing” was once again in the headlines.
“Ambush marketing” represents a special type of marketing campaign in which companies cleverly connect their products or brands with a popular, often athletic event, such as the World Cup. Ambushers often try to get a free ride without paying sponsorship fees but misleading consumers that they are an official sponsor of the event. From a legal point of view, Ambush Marketing ranges from creative strategies that do not break any laws to clearly illegal uses of logos, phrases, slogans and the like.
Sport as the main target
McDonald’s was the official sponsor of the Beijing Olympic Games. But in the run-up to the games, KFC used the marketing slogan “I love Beijing” while Pepsi replaced its usual blue cans with red ones “to show its respect for China’s year.”
During the 1996 Atlanta Olympics, in reference to their new mobile phone, Telecom New Zealand Ltd had success with an ambush advertisement containing the word “ring” (for the sound of a ringing phone) arranged five times like the Olympic rings and in the Olympic Games. colors.
McDonald’s was also on the job during the 2006 FIFA World Cup. Their Austrian ad campaign featured Federal Chancellor Wolfgang Schssel holding a red, white and red scarf (the colors of the Austrian flag) reading “AUSTRIA IS THE CHAMPION OF THE WORLD “.
The 2010 FIFA World Cup
For the 2010 World Cup, FIFA was very busy trying to ensure that only official sponsors announced their brands in connection with the event.
the dutch girls
They were all over the media: the 36 women who attended the Netherlands-Denmark game in South Africa wearing matching orange dresses emblazoned with the “Dutchy” beer logo. The Bavaria brewery supplied the dresses for promotional purposes during the FIFA World Cup. The problem is that Bavaria was not an official sponsor of the 2010 World Cup; Budweiser, a competitor, was. The hack was a good example of illegal ambush marketing. The women were escorted out of the stadium, but the goal (and something else) had been achieved: more exposure for Bavaria’s trademark without having to pay official sponsorship fees.
Air Kulula
Kulula, a South African airline that was not an official sponsor, placed ads with the slogan: “UNOFFICIAL NATIONAL CARRIER OF ‘YOU-KNOW-WHAT’.” The ad featured the national flag, soccer balls, and a special type of plastic horn used by South African fans at soccer matches (the so-called “vuvuzela”). Kulula is generally known in South Africa for its humorous advertising. According to various reports on the internet, Kulula was warned by FIFA that the combined use of these attributes created an unauthorized association with the event and was illegal.
Kulula reacted to the warning by placing new ads with the tagline “NOT NEXT YEAR, NOT LAST YEAR, BUT SOMEWHERE IN-BETWEEN”. The new ad features a bridge resembling the Cape Town World Cup stadium and vuvuzela-like golf tees with accompanying text “Definitely, definitely a golf tee,” and other images with humorous commentary.
Although all these activities can be considered ambush marketing in the advertising sense, from a legal point of view we must differentiate.
direct vs. indirect ambush marketing
Direct ambush marketing activities, such as the illegal and unauthorized use of a registered logo in product marketing, or a false or misleading claim to be an official sponsor of an event, are clearly violations.
Indirect ambush marketing, on the other hand, is more subtle and falls into a legal gray area. The Mercedes ambush indirect marketing campaign at the 1997 New York City Marathon is famous. Although Toyota was the official automotive partner of the marathon, Mercedes had its name written in the sky above the event by the planes.
Another example is Media Markt’s “We’ll get the title” campaign at the 2006 FIFA World Cup in Germany, or the aforementioned KFC slogan “I love Beijing”.
Smart indirect ambushers link sponsored activity to your brand without violating trademark or copyright rights. The question is whether the campaign gives rise to illicit associations of consumers or other violations, such as unfair competition.
Trademark Protection
Ambush clearly violates intellectual property laws when trademarks are used without a contractual right or license and trademark rights are infringed. In accordance with the Austrian Trademark Protection Act (Markenschutzgesetz; MSchG) not only the use of an identical sign but also the use of a similar sign with a risk of confusion may be unlawful. The protection of reputable brands is even stronger. The owner of a renowned trademark may request third parties to refrain from using an identical or similar sign for products or services that are not similar to those protected by the trademark.
unfair competition
Supplementary to the trademark law, designated regulations of the Austrian Law against Unfair Competition (Gesetz gegen Unlauteren Wettbewerb; UWG) supplement copyright law. Unfair business activities include deceptive business practices (Sec. 2 UWG), imitation marketing of corporate brands (Sec. 9 UWG), and other unfair business practices that fall within the general clause of Sec. 1 UWG. In addition, according to the Austrian Supreme Court, unfair exploitation of an event’s good reputation or false claims in advertisements that mislead the public about the ambusher’s official sponsorship status can be considered unfair competition.
Copyright and personal rights
Intellectual creations in the area of literature, photography, music and art enjoy (without registration) copyright protection under the Austrian Copyright Act (urheberrechtsgesetz; UrhG). Personal rights, such as the right to one’s image, can also be violated by an advertising campaign (see the Chancellor Schssel example above).
remedies
For the owner of the intellectual property rights, Austrian law provides for remedies such as a preliminary or permanent injunction, compensation, alienation orders and destruction or publication of the judgment. The right holder can also initiate criminal proceedings against the infringer in various willful cases.
However, ambush marketing campaigns are usually short-lived. Associates to the 2010 World Cup will end in July when the event ends. That means a court order would likely come too late. Even preliminary injunctions don’t provide much protection in the ambush competition. Therefore, ambush marketing cases are rarely prosecutable and the claimant will usually be referred for damages, but damages are difficult to prove.
schönherr
contacts
ruth brandstter
Telephone: +43 1 534 37 4079
Email: [email protected]
margit nemetz
+43 1 534 37 125
E: [email protected]