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Ambush Marketing and the FIFA World Cup

At the 2010 FIFA World Cup, “Ambush Marketing” made the headlines again.

“Ambush Marketing” means a special type of marketing campaign in which companies intelligently connect their products or brands to a popular, often sporting event, such as the World Cup. Ambushers often try to get a free ride without paying sponsorship fees, but by making consumers believe that they are official sponsors of the event. From a legal point of view, Ambush Marketing ranges from creative strategies that do not break any law to clearly illegal uses of logos, phrases, slogans and the like.

Sport as the main objective

McDonald’s was the official sponsor of the Beijing Olympics. But in the run-up to the games, KFC used the marketing slogan “I love Beijing,” while Pepsi replaced its customary blue cans with red ones “to show its respect for the year of China.”

During the 1996 Atlanta Olympics, in reference to its new mobile phone, Telecom New Zealand Ltd succeeded with an ambush advertisement containing the word “ring” (from the sound of a telephone ringing) arranged five times as the Olympic rings and at the Olympics. colors.

McDonald’s was also working during the 2006 FIFA World Cup ™. Its Austrian advertising campaign featured Federal Chancellor Wolfgang Schssel holding a red, white and red scarf (the colors of the Austrian flag) that read “AUSTRIA IS A WORLD CHAMPION.”

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.

Dutch girls

They were all over the media: the 36 women who attended the Netherlands-Denmark match in South Africa wore matching orange dresses 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 stunt 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: to increase the exposure of Bavaria’s trademark without having to pay official sponsorship fees.

Kulula Air

Kulula, a South African airline that was not an official sponsor, placed ads with the slogan: “UNOFFICIAL NATIONAL CARRIER OF THE ‘YOU-KNOW-WHAT'”. The ad featured the national flag, soccer balls and a special plastic horn used by South African fans at soccer matches (the so-called “vuvuzela”). Kulula is generally known in South Africa for his humorous advertising. According to various reports on the internet, FIFA warned Kulula 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 slogan “NOT NEXT YEAR, NOT LAST YEAR, BUT SOMEWHERE IN BETWEEN.” The new ad features a bridge that resembles Cape Town’s World Cup stadium and golf tees that look like vuvuzela with accompanying text “Definitely, definitely a golf tee,” and other images with humorous comments.

Although all these activities can be considered ambush marketing in the advertising sense, from a legal point of view we must differentiate them.

Direct v. indirect ambush marketing

Direct ambush marketing activities, such as the unauthorized and illegal use of a trademarked logo on merchandising products, or a false or misleading claim to be an official event sponsor, are clearly violations.

Indirect ambush marketing, on the other hand, is more subtle and falls within a legal gray area. 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 over the event by airplanes.

Another example is the Media Markt campaign “We’ll get the title” 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. The question is whether the campaign leads to illegal consumer associations or other infractions, 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. According to the Austrian Trademark Protection Act (Markenschutzgesetz; MSchG) not only the use of an identical sign, but also the use of a similar sign with the risk of confusion may be illegal. The protection of reputable trademarks is even stronger. The owner of a reputable trademark may request third parties to refrain from using an identical or similar sign for goods or services that are not similar to those protected by the trademark.

Unfair competition

Complementary to trademark law, designated regulations of the Austrian Law Against Unfair Competition (Gesetz gegen Unlauteren Wettbewerb; UWG) supplement the copyright law. Unfair business activities include deceptive business practices (Sec 2 UWG), corporate brand copycat marketing (Sec 9 UWG), and other unfair business practices that fall within the general clause of Sec 1 UWG. Furthermore, according to the Austrian Supreme Court, unfair exploitation of the good reputation of an event or false accusations in advertisements that mislead the public about the ambusher’s status as an official sponsor 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 self-image, can also be violated by an advertising campaign (see Chancellor Schssel’s example above).

Remedies

For the owner of intellectual property rights, Austrian law provides for remedies such as a preliminary or permanent injunction action, compensation, removal and destruction orders or publication of the judgment. The rights holder can also initiate criminal proceedings against the offender in various intentional cases.

However, Ambush Marketing campaigns are usually short-lived. Those associated with 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 ambush competition. Therefore, Ambush Marketing cases are rarely actionable and the plaintiff will generally be referred to damages, but damages are difficult to prove.

Schoenherr

Contacts:

Ruth brandsttter

T: +43 1 534 37 4079

E: [email protected]

Margit nemetz

+43 1 534 37125

E: [email protected]

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