Co-authored by Wil Kim and Polina Maloshchinskaia
Ambush marketing is a strategy used by third parties to a major event in an attempt to associate themselves directly or indirectly with the event and reap the rewards without official authorization or sponsorship rights.
While the term “ambush” marketing may draw negative connotations, it is important to note that lawful and legitimate means of ambush marketing exist. This includes drawing on the public’s excitement for an event, genuine incidental use of an IP right, using indirect references via iconography or jargon and using keywords, such as the name or trade mark owned by another business, providing the average consumer is able to ascertain the original owner of the advertised goods or services. Moreover, the widespread use of social media has created a platform for brands to respond instantly to highly publicized events and occurrences, and has allowed brands to capitalize on the mood of their social media followings in growing their brand through lawful means. For instance, Auto Trader UK launched a lawful campaign during the 2018 FIFA World Cup to give away cars, alongside PromoVeritas, every time England scored a goal. The campaign attracted thousands of entries and millions of views across Auto Trader’s various social media platforms.
Conversely, ambush marketing has also prompted numerous legal battles in the past. Unlawful ambushing has been found usually on the grounds of IP infringement, namely the breach of copyright or trademark laws, but has also been deemed as unlawful passing off (in the UK), unfair competition (in Germany and France) or a breach of advertising regulations or other types of special legislation. A recent example includes SK Telecom’s broadcast commercials in the lead up to PyeongChang 2018, which used the slogans “See you in 5G Korea” and “See you in PyeongChang” alongside Korean Olympians. This was judged to have violated the rights of its competitor KT Corporation as the official sponsor.
Given the myriad of ambush marketing strategies, in sport, it is common for bodies that organize major sporting events (such as the International Olympic Committee (IOC) and the Olympic and Paralympic Games) to counter ambush marketing by lobbying for the implementation of special legislation pre-emptively. This is mainly due to financial reasons, as legitimate marketing via sponsorship agreements can generate both a major source of revenue for the event and recognition for the parties involved. In the years leading up to London 2012, there was huge impetus to protect official sponsors, which led to the London Olympic Games and Paralympic Games Act 2006 creating civil rights and criminal offenses (e.g. the production of Olympic merchandise without the permission of the London Organising Committee of the Olympic and Paralympic Games). Similarly, on March 14, 2020, the Italian Government enacted Law Decree No. 16/2020 to prohibit ambush marketing for Euro 2021, the 2022 Ryder Cup, the 2021-2025 ATP Finals and the Milan-Cortina 2026 Winter Olympics, which are all due to be held in Italy.
Other recent examples of ambush marketing
German sportswear manufacturer Puma has taken steps that may be seen as ambush marketing, targeting the Olympics among other events. On March 24, 2020, Puma filed applications to register “Puma Tokyo 2021” trademark on the day the Tokyo Olympics were announced to be postponed. At the time, the United States Olympic and Paralympic Committee (the USOPC) had not applied for any trademarks for 2021. Despite not being a sponsor for any of the events, Puma looked to register “Puma Tokyo 2022,” “Puma Beijing 2022” and “Puma Paris 2024,” as well as "Puma Euro 2021" and "Puma Euro 2022" (in connection with the UEFA European Championships), "Puma Eugene 2021" and "Puma Eugene 2022" (in connection with the World Athletics Championships). All applications were refused because of their potential links to the events.
In addition, Puma refused the USOPC request to withdraw the application and started proceedings to cancel USOPC trademarks (“Tokyo 2020” and “Beijing 2022”). As a result, in February 2021, the USOPC filed a complaint against Puma with the US District Court of Colorado. The USOPC requested that (i) the use of infringing marks be prohibited, (ii) Puma’s cancellation proceedings be terminated, and (iii) the court uphold its Tokyo 2020 and Beijing 2022 trademarks.
In contrast, UEFA has not yet taken any action against Puma after considering its position in April 2020. At the same time, a Puma spokesperson was reported saying that Puma “will not prohibit others from using [generic terms such as “Tokyo,” “Euro,” “Cup” and “2021”].”
Ambushing marketing carries both legal and wider risks. As mentioned, it can be both lawful and legitimate. However, there are potential negative connotations associated with the practice, which may lead to bad publicity and reputational damage if performed unlawfully. Businesses looking to engage in ambushing tactics should be aware of the laws and regulations surrounding the practice. They should also be aware of who exactly the rights holders are in order to avoid breaching such third parties’ intellectual property rights inadvertently while carrying out marketing activities.
These risks are particularly pertinent given the numerous sporting events that were postponed to 2021 due to COVID-19. Rights holders will be expected to be on careful watch to protect themselves against unlawful ambushing tactics over the forthcoming months. In particular, with the Tokyo Olympics set to take place between July and August, brands looking to “piggy-back” off “Tokyo 2020” should be aware of the different rights held by each of the following: the IOC, the International Paralympic Committee, the Tokyo Organising Committee of the Olympic Games and Paralympic Games, each national Olympic and Paralympic committees (e.g. the British Olympic Association and the British Paralympic Association) and the individual image rights of current and former Olympic and Paralympic athletes. The race for sponsorship rights and branding at the Olympics is well underway; as such, late entrants must be aware of potential hurdles should they seek a place on the commercial podium.