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Ambush Marketing
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  • 1. Ambush Marketing Sudipta De Sarkar. LL.M. 08-35 LL.M. 2 nd Year (IPR). NALSAR University of Law.
  • 2.
    • In the 1984 Los Angeles Olympic Games where Converse was an official sponsor, Nike built huge murals near the Los Angeles Coliseum displaying the Nike logo and several athletes wearing Nike sporting clothes.
    • Reebok was one of the official sponsors of the Barcelona Olympic Games in 1992. When the US basketball Dream Team went up to the podium to receive their gold medal, two of its most famous players, Michael Jordan and Charles Barkley, who had lucrative sponsor contracts with Nike, covered the Reebok logo of their tracksuits with the US flag.
    • In the Atlanta 1996 Olympic Games, Reebok was also an official sponsor. They were not pleased when at a press conference the British 100 metres runner Linford Christie appeared wearing blue contact lenses with the highly recognisable Puma logo in white in the centre of each lens. The Puma logo lenses received world wide coverage and was front page of most international newspapers.
    • In the same games Nike handed out to the crowds paper flags bearing Nike's logo. The TV cameras captured the crowds waving the Nike flags to the despair of the official sponsors
  • 3. Coverage of the presentation
    • Concept and development;
    • Types and effects of ambush marketing;
    • Traditional legal measures;
    • Remedial and preventive measures;
    • Conclusion.
  • 4. What is it ?
    • Ambush marketing, as a term, is so uncertain that most articles on the subject start by defining what the term means often by using examples of such practices.
    • A wide range of laws are required to prevent Ambush Marketing : Intellectual Property laws, planning laws, advertising regulation and contract and real property laws, etc.
    • However, the presentation will be limited to the scope of Trade marks and the concept of ambush marketing.
  • 5.
    • It can be defined as an attempt by an organization to benefit from the goodwill or popularity of a particular event by creating an association between itself and the event, without permission from the relevant organization and without paying the fees to become an official sponsor.
    • The question of brands and sponsorships arises.
    • Highly relevant in the world of sports marketing.
    • Is it illegal, or is it unethical, or is it smart advertising?
  • 6. How is it done?
    • purchase advertising time on television before, during and after an event;
    • erecting billboards near the event;
    • using planes to fly their banners overhead or handing out free merchandise, like caps or T-shirts, at or near the event so that spectators who are picked up by television cameras become walking billboards;
    • Any of these techniques might be combined with the use of imagery or words in advertising ;
    • giving away free tickets to the event as prizes in an advertising campaign;
    • sponsoring individual teams or athletes instead of the event itself;
    • even sponsoring the city where the event is held, etc.
  • 7.
    • Term coined in the 1980s by Jerry C. Welsh at American Express.
    • Also known by the names of “guerrilla” or “parasitic” marketing.
    • ‘ embuschier’ meant ‘ a place in the wood’, and ambush means to ‘attack from a hidden place’.
    • Juan Antonio Samaranch, President, IOC, 1980, introduces three categories of sponsorship : official sponsor, official supplier and official licensee.
    • Huge sponsorship amounts because of exclusivity. But, excluded parties seek ways of getting associated with the event, giving rise to the phenomenon.
  • 8. Why Ambush Marketing.
    • Difficult for marketer to spend for the high cost;
    • Hype environs of mega events;
    • Sponsor has to spend huge amount for publicity on T.V, Print and Outdoor Advertising;
    • Ambush Marketing is cost effective;
  • 9. Legal Remedies
    • In the US, ambush marketing is not strictly forbidden.
    • Ambush marketing does not necessarily involve trademark infringement or manufacturing counterfeit goods.
    • Trademark infringement action have taken place, but did not cover ‘pure’ ambush marketing practices.
  • 10.
    • Ambushed parties are highly unlikely to succeed.
    • Reasons being :
    • i) There may not be any unauthorized use of trade marks;
    • ii) First Amendment defence;
    • The Second ground has been upheld in cases like Rogers v. Grimaldi (1989)
  • 11.
    • False advertising :
    • Successfully pleaded in the case of Mastercard Int’l v. Sprint Communications Co (1994).
    • This was a case on ‘direct’ ambush marketing.
    • But doubts remain as to the circumstances of the case.
  • 12.
    • Mastercard had agreement with ISL Football AG for using World Cup 94 trade marks on all “card-based payment and account access devices”.
    • Sprint, the official long-distance telecommunications sponsor began using the trade marks on its telephone calling cards.
    • Mastercard sued Sprint under Section 43(a) of the Lanham Act, for false advertising.
    • 43(a) prohibited ‘false’ or ‘misleading’ description or misrepresentation of fact in commercial advertising or promotion.
    • The Court agreed that the agreement between Mastercard and ISL Footballed barred Sprint’ use of the World Cup trade marks, and Mastercard was entitled to an injunction.
    • The case was one between two ‘official’ sponsors and the analysis of the case was more on the breach of contract issues rather than the parties’ Intellectual Property Rights.
  • 13.
    • Dilution :
    • Courts have held that identical marks in themselves constitute sufficient circumstantial evidence to prove actual dilution.
    • Victor Moseley et al. v. V Secret Catalogue, Inc (2003), Federal Trade Mark Dilution Act requires ‘actual’ dilution rather than a ‘likelihood of dilution’.
    • But ambush marketing strategies doesn’t generally involve breaching another’s trademarks.
  • 14.
    • Reverse Confusion :
    • May happen when a ‘junior’ user swamps the reputation of a ‘senior’ user by a relatively larger advertising campaign.
    • However, this has never been applied in any US case against ambush marketing, due to general non-infringing techniques of ambush marketing.
  • 15. Indian Position
    • ICC Development (Int’l Ltd.) v. Arvee Enterprises & Philips (2003) PTC 245 Del.
    • Judgment in consonance with the Canadian case of NHL v. Pepsi 70 B.C.L.R (1992).
    • Marked difference from US practice.
    • Cases are described in detail hereinafter.
  • 16. NHL v. Pepsi
    • First case to deal ‘head-on’ with ‘pure-ambush’ marketing;
    • Pepsi promoted a scratch card which stated “If X city(home of a NHL team) wins Y number of matches, you win”. This was in addition to other promotional measures like T-shirts, caps etc.
    • Disclaimer was provided on the card that the campaign did not associate itself or sponsor the NHL. In fact, Coca-Cola did.
    • The Court identified the tort of passing off, by means of suggestion, that the plaintiff was in a way authorising or endorsing the product.
    • It also stated that the defendant could also cash in on the goodwill of the plaintiff.
    • However, the Court found that the likelihood of confusion was very minimal, and even if there was any, it was eliminated by the disclaimer.
    • The decision of the Court was that ambush marketing, done bona fide, was an acceptable business practice in Canada.
  • 17. ICC v. Arvee
    • Philips had indulged in a promotional campaign “ Philips : Diwali Manao World Cup Jao ” and “ Buy a Philips Audio system : Win a ticket to the World Cup ”.
    • The words were accompanied by an image of a ticket with fictitous seat and gate number.
    • Philips was not one among the 9 official sponsors of the ICC World Cup.
    • The ICC filed suit, citing passing off, unfair competition and ambush marketing.
    • The Court held that slogans only pointed that the purchaser of Philips may win a prize and nothing more.
    • No likelihood of confusion that Philips was a sponsor or licensee thereof. There was no passing off or unfair trading.
    • No element of deceit in ambush marketing. Only opportunistic commercial exploitation of the event.
    • Not contrary to public interest, as the commercial advertising is free speech protected by the Indian constitution.
  • 18. Protective Measures
    • Vertical and horizontal creep.
    • ASA,’78 (US) protects Olympic symbols, words, marks, motto, Insignia etc.
    • Herein, ‘likelihood of confusion’ requirement waived, as standard defences are not available.
    • Similar protection available in Australia, UK, China etc.
    • In India, Section 9(2) of Trade Marks Act,1999, provides protection to Olympic name and emblem.
    • Now, before submitting candidature for hosting such event, prospective country has to submit intended protection measures.
    • International federations now occupy a strong bargaining position, leading to higher sponsorship deals, and demands for stronger governmental protection.
  • 19.
    • Ambush marketing a punishable offence in South Africa.
    • publication or display of false or misleading statements or ads implying a contractual or other connection with a sponsored event or its sponsor is prohibited.
    • Protection extended to any event that is held in public, of a sporting or entertainment nature, which will be likely to attract consumers’ attention and which are financed by commercial sponsorship.
    • At the 2003 ICC Cricket World Cup, two schoolteachers took a group of students to a match at the Maritzburg Oval. Because Pepsi was the event’s official sponsor, the children with Cokes in their lunch boxes were barred entry until they peeled off the Coca-Cola labels and scraped off the logos from all the bottle tops and lids. This was in addition to hundreds of cease and desist letters sent to competitors.
  • 20. How can sponsors protect themselves
    • Lawsuits are not the most feasible options.
    • Olympic organizers face new dilemma. Crackdown on ambush marketing can cause defection of companies sponsoring individual teams.
    • Then what can be done?
  • 21. Possible measures
    • Compete with your own advertisement;
    • Buy advertising time on television network;
    • Carefully policing the event;
    • Otherwise, enact stringent legislation, broadening the scope of coverage to more type of activities. For eg. South African Initiative.
  • 22. That’s Ambush Marketing!!!
  • 23.
    • Thank You