Can a Brand Ambush March Madness - Ad Age Mini Law Lesson


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Can a Brand Ambush March Madness - Ad Age Mini Law Lesson

  1. 1. Mini Law Lesson: Can a Brand “Ambush” March Madness Brian Heidelberger Winston & Strawn
  2. 2. IMPORTANT DISCLAIMER• This is not legal advice.• I am not your attorney.
  3. 3. What is Ambush Marketing?“Trading off of the good will of an event without being an official sponsor.”
  4. 4. What is the Law?• misuse of a symbol or device;• which is likely to confuse consumers as to the plaintiff’s sponsorship or approval of the product in commerce.
  5. 5. So What Can a Brand Do?
  6. 6. Tactics: Avoid Use of Trademark
  7. 7. Risks?• Avoiding use of trademarks doesn’t mean that you are clear• Final Four® and “March Madness®• “Media/news entities do not need written consent to use NCAA marks/logos for editorial content in coverage of NCAA events.”• NCAA Policy prohibits use of “display of any commercial identification within an NCAA championship bracket”
  8. 8. Tactics: Give Away Tickets• “Win Tickets in the Coors Light Tourney Time Sweepstakes” – 2001 Coors Promotion
  9. 9. Risks?• Back of tickets have a license which states, in effect, “may not be given away for promotional purposes”• Just b/c you can buy ‘em doesn’t mean you can give ‘em away in promotion• NCAA policy rejects use of tickets w/out permission.
  10. 10. Tactics: Giveaways to Attendees
  11. 11. Risks?• Football World Cup, Dutch brewer, Bavaria, gave away garish orange lederhosen displaying its name to hundreds of Dutch supporters attending the match against the Ivory Coast.• Budweiser was the official beer.• Stewards at the match ordered the fans to remove the garments before letting them in.
  12. 12. Tactic: Use Disclaimer“This Ad Is Only Sponsored by Us and No Third Party”
  13. 13. Risks?• Disclaimers are not always accepted by a court as effective• Disclaimer likely won’t fix an ad which is confusing on its face• Disclaimer is only as good as the clarity of the ad and the disclaimer’s prominence.
  14. 14. Tactics: Sponsor Athlete
  15. 15. Risks• May be prohibited/restricted by sanctioning body• Olympic Rule 40 –Athletes are not allowed to appear in non-Olympic sponsored ads before and during the Olympics –Could cause athlete to be stripped of his/her medal, sanctioned or fined.
  16. 16. More Videos? Search; or Go to– FTC’s Updated Dot Com Disclosure Requirements– Brand’s Use of Vine, Pinterest and Facebook– How to Respond to a Cease and Desist– Use of Celebrities in Social Media– Who’s Been Sued in Digital Media and Why