What is Ambush Marketing:
If one were to find a dictionary definition for the term Ambush Marketing it would probably read something as follows: The practice whereby a company, often a competitor, intrudes upon public attention surrounding an event, thereby deflecting attention towards itself and away from a sponsor.
Ambush Marketing takes place when a trader seeks to utilise the publicity value of an event, for instance a major sports tournament or a concert, to gain a benefit from it despite not having any involvement or connection with that event and particularly having made no financial contribution to entitle him to derive benefit from it.
Ambush Marketing generally takes two forms, namely:
1. Ambush Marketing by way of Association in which case the ambush marketer misleads the public into thinking that he is an authorised sponsor or contributor associated with the event. This can be done by using the insignia of the event or insignia which are confusingly similar thereto, and furthermore by misrepresenting to the public in some manner that the marketer or his brand are associated with the event; and
2. Ambush Marketing by way of Intrusion whereby the ambush marketer does not seek to suggest a connection with the event but rather to give his own brand or other insignia exposure through the medium of the publicity attracted by the event and without the authorisation of the event organiser.
In both forms of Ambush Marketing the marketer has the objective of using the event as a platform to promote his brand or product but without incurring the financial and other obligations of a sponsor.
How does it work?
One of the most obvious pre-requisites for Ambush Marketing is that the event in respect of which the offending conduct is aimed at is in fact a sponsored event. This includes not only sporting competitions and tournaments such as the FIFA WORLD CUP event, OLYMPIC GAMES and ICC CRICKET WORLD CUP, but also stage performances and related entertainment which may have as an enabling platform the support of sponsors. Ambush marketing is a marketing technique which involves riding on the coattails of a major event without paying sponsorship fees, essentially using the event as a free promotion. Ambush marketing is a source of frustration for promoters of sports events, as well as companies which do pay sponsorship fees.
This type of marketing most commonly occurs in association with major sports events, although other events could be used as a venue for ambush marketing as well. At a typical sports event, several companies pay very large fees for exclusive marketing rights, and these fees can sometimes number in the billions for events like the Olympics and the FIFA Football World Cup. In return for the fees, the companies get exclusive advertising space, and it is supposed to get protection from competitors. The protection of sponsors against possible ambush marketing by their competitors is a particularly important obligation on an event organizer. The event organizer accepts financial contributions from its sponsors and in return is required to provide them exclusive marketing rights as far as the event is concerned. If the event organizer cannot guarantee such exclusivity then it faces the real risk that it may not be able to retain the sponsor and possibly also be in breach of its agreement with the sponsors.A variety of techniques are used in ambush marketing. The most basic is simply buying up billboard space around an event, assuring that people who attend the event will see the marketing. Ambush marketers may do things like pass out t-shirts, hats, and other promotional gear to people attending the event so that their branding is seen in the stadium.
Why is it important to take notice of it?
Major events having publicity value have become important vehicles for the promotion and advertising of products and organizers of such events generally require a monetary payment for participation in the promotion value of the event. Such financial contributions generally take the form of sponsorships. Typically a trader would pay sponsorship money to an event organizer in order to obtain exposure for his product at the event. This exposure could take the form of advertising or providing clothing for participants in the event and the like.
What many people do not realize is that sponsorships are the lifeblood of major events such as the FIFA WORLD CUP. Were it not for the sponsorships, the event as a privately owned venture would not be able to take place. It also naturally follows that if an event organizer cannot secure the continued interest and support of its sponsors, the future existence of the event as a whole may be at risk.
Ambush Marketing has become a major threat to the viability of sponsorship of events and thus for the holding of the events since, without the sponsorship, many sporting and entertainment events are not economically viable and cannot be staged. It is thus in the interests of event organizers and of sponsors to curtail or minimize the scourge of ambush marketing.
Examples of Ambush Marketing
There is no exhaustive list of what constitutes ambush marketing.As can be seen, the above definitions are very wide and make provision for various types of conduct. Whether a trader is committing an act of ambush marketing will depend on the circumstances and facts or each matter and in some instances may also depend on the interpretation given to the specific anti-ambush marketing provisions by a particular judge or presiding officer. In this regard, a comprehensive and authoritive judgment on ambush marketing which may serve as precedent for matters to follow is eagerly awaited.
However, by way of illustration anyone of the following scenarios may be held to constitute ambush marketing:
- Making unauthorized use of a sponsored event’s trade marks or logos which may create the impression of an association or connection with the event;
- Placing advertisements for a product on the outskirts of a stadium at which a sponsored sporting event is taking place through for example of billboard advertising etc;
- Causing an aeroplane towing an advertisement for a product to fly over a stadium at which a sponsored sports event is taking place;
- Running advertisements making reference to a sponsored sporting event, without suggesting that he advertiser is a sponsor of the event;
- Running a promotional competition making reference to a sponsored event, including the use of marketing techniques to mislead the consumer, e.g. offering event tickets as prizes;
- Causing a group or block of spectators attending a sponsored event to wear clothing promoting a product, which block of spectators would attract attention at the event and in televised renditions of the event – this may include groups of people who target spectators on their way to and from the events who in some way imply an association with the event;
- Generally bringing a product or its promotion to the attention of people interested in a sponsored event but without suggesting or implying any form of sponsorship of the sponsored event;
- Sponsoring media coverage of a sponsored event, e.g. in 1984 Kodak sponsored ABC broadcasts of the Los Angeles Olympics when Fuji was the official IOC sponsor;
- Handing out unofficial programmes and free merchandise to event attendees inside and outside the venues; and
- Distributing free samples of a non-sponsor brand product or giveaway items such as t-shirts or flags displaying the brand at the event.
What S&F can do for you
Spoor & Fisher has extensive knowledge and experience in advising on and combating ambush marketing. Depending on the particular circumstances of each matter, an instance of ambush marketing may create a cause of action for an event organizer on the basis of trade mark- and / or copyright infringement (in which case the matter may also be pursued in terms of the Counterfeit Goods legislation), passing-off and the provisions which create criminal liability under the Trade Practices and Merchandise Marks Acts on the basis of unlawful competition. The 2010 FIFA WORLD CUP SOUTH AFRICA event has, for example, been declared a "protected event" in terms of the Merchandise Marks Act which specifically protects the event organizers against ambush marketing by way of intrusion.
Whilst it will generally be necessary to seek relief on any of the above grounds from the South African High Courts, there is also a remedy that may be pursued through the Advertising Standards Authority (ASA) in terms of its Sponsorship Code. The ASA’s Sponsorship Code is an additional tool which may be used against Ambush Marketing in which the sanctions imposed by the ASA in its Code of Conduct may be imposed if the conduct complained of is held to be in contravention of the code.
All the above examples of Ambush Marketing can be combated in terms of the enabling legislation and regulations referred to above. Whichever cause of action may be available will depend on the circumstances and facts of each matter. For any further enquiries or advice on the legal principles relating to anti-ambush marketing legislation, please contact Spoor & Fisher in Centurion, Pretoria.