The Need to Know Legalities of   Marketing Sponsorships          Oliver Gleeson, SDI Marketing              Bill Hearn, Da...
Overview•   Key elements of sponsorship agreements - Bill•   Ambush marketing and sponsorship activation - Jolan•   Negoti...
Key Elements of Sponsorship Agreements  •   What’s the nature of the sponsorship?  •   Who is the rights holder (sponsee)?...
Key Elements of Sponsorship Agreements  •   Payment of fees and other consideration  •   Commercial Considerations      • ...
What’s the nature of the sponsorship?•   Five basic categories of sponsorship agreements    •   Events - e.g., Rogers Cup ...
What’s the nature of the sponsorship?Event Sponsorship•   One-off events    •   Typically less expensive and lower risk   ...
What’s the nature of the sponsorship?Venue Sponsorship•   Title Identification    •   Automatic association with every eve...
What’s the nature of the sponsorship?Sponsorship of Organizations•   Leagues, teams, playoffs, tournaments, associations, ...
What’s the nature of the sponsorship?Product Placements•   Presumably, most companies would like to have their products   ...
What’s the nature of the sponsorship?Product Placements•   Two scenarios: Unauthorized and Authorized•   Two main issues  ...
What’s the nature of the sponsorship?Unauthorized Product Placements•   What might brand owner do if placement is unauthor...
What’s the nature of the sponsorship?Authorized Product Placements•   Why would a film/TV producer go to the trouble of ge...
What’s the nature of the sponsorship?Authorized Product Placements•   When the placement is authorized, what can the brand...
Who is the rights holder (sponsee)?Key Considerations•   Identify the rights holder•   Verify that it has the authority to...
What are the sponsorship rights?Key Considerations•   Almost anything can be sponsored. Seek solutions that align with    ...
What are the sponsorship rights?Sample Clause•   Subject to the terms and conditions of this Agreement, and subject to the...
What are the sponsorship rights?A variety of sponsorship rights can be bargained for•   Advertising (title sponsorship, us...
What are the sponsorship rights?A variety of sponsorship rights can be bargained for•   Others    •   Perks, such as free ...
Exclusivity and Carve Outs•   Exclusivity clauses tend to be among the most heavily negotiated    clauses in sponsorship a...
Exclusivity and Carve OutsKey Terms• “Exclusive”• “Non-exclusive”• “Sole”Important Considerations• Types of products/servi...
Exclusivity and Carve OutsTypical Structure of Exclusivity Clauses• General grant of exclusivity + carve outsExample   The...
Licensing and Protecting IP•   Sponsorship agreements commonly allow the parties to use each    other’s trade-marks to ass...
Licensing and Protecting IPMaintaining Distinctiveness of Trade-marks•   Failure to do this could mean trade-mark registra...
Licensing and Protecting IPDealing With Newly Created IP•   Sponsorship agreement should determine who owns rights to    n...
Payment of Fees and Other Consideration•   Many ways to address payment of fees, including    •   Lump sum payments    •  ...
Payment of Fees and Other ConsiderationLump Sum Payments•   Benefit to the sponsee; may be acceptable in simpler agreement...
Payment of Fees and Other ConsiderationContributions in Kind•   Sponsor may provide products/services in lieu of cash paym...
Commercial ConsiderationsReps and Warranties•   Some common provisions include    •   Sponsee has obtained or will obtain ...
Commercial ConsiderationsTerm, Termination, and Options to Renew•   Term    • Consider extending beyond end of event•   Te...
Dispute Resolution•   Some Considerations for DR Process to First Require Exhaustion of    Alternatives to Litigation in F...
Dispute Resolution•   Process    •   Negotiation - structured and escalated    •   Mediation    •   Arbitration    •   Lit...
Key Elements of Sponsorship Agreement - Panel  •   Rights of first refusal and negotiation -      •     Labatt v. NHL - ex...
AMBUSH MARKETING &SPONSORSHIP ACTIVATION
LONDON 2012https://cot.box.com/s/r5m7l8obvprbg4
CANADIAN OLYMPIC TEAM MISSION VISION                                              POSITION To lead the achievement of   To...
OUR PARTNERS’ BEST PARTNEROUR VISION: To be the best corporate marketing partner with areputation for quality, unparallele...
OUR STRATEGIES1.   LEVERAGING AND     NEGOTIATING WITH A     SPONSOR2.   LEGALITIES SURROUNDING     SPONSORSHIP ACTIVATION...
DOMESTIC PARTNERS
LEVERAGINGANDNEGOTIATINGWITH A SPONSORA. Beyond cash, what else can you ask for if you’ve   hit the cash limit?B. Trading ...
LEGALITIESSURROUNDINGSPONSORSHIPACTIVATIONA. Devil in the detailsB. Graphics Standards ManualC. Brand Protection Guideline...
AMBUSHMARKETING•   Tactic whereby advertisers associate themselves with    an event/marketing property without securing   ...
AMBUSH 2012•   Total of 84 cases of Ambush    Marketing in 2012 leading up to    and during the London Games•   Cases rang...
AMBUSH CASESIN 2012               43
AMBUSH RATING SCALE
COMMON TRENDSDURING LONDON2012 GAMES•   Congratulatory Tweets and Facebook posts and contests•   Use of Symbols of London ...
OLD NAVY•   Considered to be a major•   infringement•   Unauthorized sale of Olympic T-    Shirts in Canadian Old Navy Sto...
BENJAMIN MOORE•   Considered to be a major infringement•   Facebook contest occurred during    London 2012 Olympic Games• ...
ANTICIPATIONSFOR 2014•   High level of Ambush Marketing•   Russian imagery to start flooding advertisements•   Increase in...
Ambush Marketing & Sponsorship Activation:Case Study•   Budweiser Playoff Payoff Contest - Spring 2012    •   Background t...
Case Study – Playoff PayoffBackground•   In early 2011, Molson muscles out Labatt and becomes the new official    beer spo...
Case Study – Playoff PayoffLabatt Strikes Back•   Bud’s Big Game Commercial - Winter 2012        http://www.youtube.com/wa...
52
Case Study – Playoff PayoffNature of the Contest• Labatt launched the Budweiser Playoff Payoff contest,   coinciding with ...
Case Study – Playoff PayoffAmbush Marketing?  •   Labatt never explicitly promised tickets  •   Labatt never referenced an...
Case Study – Playoff PayoffAmbush Marketing?  Disclaimer in Contest Advertising  Budweiser is not an official sponsor of t...
Case Study – Playoff PayoffDispute With the NHL•   NHL released the following statement:    •   “We want our fans to know ...
Case Study – Playoff PayoffDispute With the NHL•    Excerpt from Typical Ts&Cs on Back of Ticket to NHL Game     IMPORTANT...
Case Study – Playoff PayoffDispute With the NHL•   Prize Description in Contest Rules    There is one Grand Prize availabl...
Case Study – Playoff PayoffResolution? A Cautionary Tale?                                 59
NEGOTIATING SPONSORSHIPS        • Sponsorship            Strategy         • Properties       • Development         • Execu...
OLIVER GLEESONCORPORATE COUNSEL, SDIMKTG
CONTRIBUTION TO PANEL• Unique Perspective• Man in the Middle –  “Go Go Go vs. No No No”• Black and White (Grey)• Increase ...
STARTING POINTUNDERSTANDING OBJECTIVES•   Pre-Fundamentals•   Know the Story – “Cup of Coffee”; “Have a Beer”•   “Spirit o...
MIGHT DOES NOT ALWAYS MAKE RIGHT• Leverage key in negotiations• “Maxing” Leverage not always in best interest of your clie...
WALKING THE “GREY LINE”PLAYING FAST AND LOOSE- ROAD HOCKEY TO CONQUER CANCER
WALKING THE “GREY LINE”PLAYING FAST AND LOOSE•   Sponsor Activations•   Promotions and Contests•   Activating before Agree...
Questions            67
Bill Hearn, Davis LLP bhearn@davis.ca    416.369.5298                        68
JOLAN B. STORCH    General Counsel                and          Business       Development            Advisorjstorch@olympi...
Oliver GleesonVP Business Development& Corporate Counselogleeson@sdimarketing.com416.640.8858
Thank You      Disclaimer: This presentation contains general information only and does not constitute legal advice.      ...
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The Need to Know Legalities of Marketing Sponsorships

  1. 1. The Need to Know Legalities of Marketing Sponsorships Oliver Gleeson, SDI Marketing Bill Hearn, Davis LLP Jolan Storch, Canadian Olympic Committee The Canadian Institute’s 19th Annual Advertising & Marketing Law Conference January 24, 2013, Toronto
  2. 2. Overview• Key elements of sponsorship agreements - Bill• Ambush marketing and sponsorship activation - Jolan• Negotiation of sponsorship agreements - Oliver• Case studies• Q&A 2
  3. 3. Key Elements of Sponsorship Agreements • What’s the nature of the sponsorship? • Who is the rights holder (sponsee)? • What are the sponsorship rights? • Exclusivity and carve-outs • Licensing and protecting IP 3
  4. 4. Key Elements of Sponsorship Agreements • Payment of fees and other consideration • Commercial Considerations • Representations and warranties (e.g., morals clauses) • Term, termination and options to renew • Cancellation and postponement • Dispute resolution 4
  5. 5. What’s the nature of the sponsorship?• Five basic categories of sponsorship agreements • Events - e.g., Rogers Cup • Venues - e.g., Air Canada Centre • Organizations - e.g., NHL • Individuals - e.g., athletes • Product Placements - e.g., in movies and TV shows 5
  6. 6. What’s the nature of the sponsorship?Event Sponsorship• One-off events • Typically less expensive and lower risk • A good way to “test the waters” in developing a long term strategy• Recurring and long term events • Greater expense and risk • Risk can be mitigated with effective payment, termination, force majeure, and insurance provisions 6
  7. 7. What’s the nature of the sponsorship?Venue Sponsorship• Title Identification • Automatic association with every event held at the venue • Potential Drawbacks • High cost (e.g., $US16M/year for MetLife Stadium; $US300M over 32 years for Reliant Stadium & Astrodome; $CA20 million over 30 years for Air Canada Centre - presumably, “ACC” not what Air Canada had in mind) • Potential for negative publicity associated with the venue• Other Considerations • Sponsor should be aware of events typically held at venue and any superseding rights of others 7
  8. 8. What’s the nature of the sponsorship?Sponsorship of Organizations• Leagues, teams, playoffs, tournaments, associations, charitiesSponsorship of Individuals• Risk of scandals creating a negative association with brand: • Examples - Michael Phelps (marijuana), Lance Armstrong (doping) • Mitigate risks with “morals clauses” • Triggering events (e.g., criminal behaviour or even an allegation of it) 8
  9. 9. What’s the nature of the sponsorship?Product Placements• Presumably, most companies would like to have their products shown in movies and TV shows (especially without payment) unless the placement is detrimental to the brand• For instance, the creepy villain who uses their branded tablet computer to stalk their victims/amass their followers online • Clearly, this is “off message” and may tarnish the tablet’s brand 9
  10. 10. What’s the nature of the sponsorship?Product Placements• Two scenarios: Unauthorized and Authorized• Two main issues • If unauthorized, how should brand owner respond? • If authorized, how should interests (often competing) of sponsor (usually seeking effective product placement and protection of brand image) and producer (usually seeking to maintain creative control) be reconciled? 10
  11. 11. What’s the nature of the sponsorship?Unauthorized Product Placements• What might brand owner do if placement is unauthorized and negative? • Get thick-skinned, forego legal response, try to keep PR response light? • E.g., Jaguar plot line in Mad Men, IKEA store in 30 Rock • Forego legal response but rebuke strongly in PR response? • E.g., Budweiser beer in movie Flight starring Denzel Washington • Sue? • E.g., Slip ‘n Slide in movie Dickie Roberts: Former Child Star - Wham-O Inc.’s US court case against Paramount Pictures dismissed in 2004 11
  12. 12. What’s the nature of the sponsorship?Authorized Product Placements• Why would a film/TV producer go to the trouble of getting permission from the brand owner to give it “free publicity” in a movie/show? Two main reasons: • Reducing Production Costs - Get access to free props • Mitigating Legal Risks - Often the producer must get the brand owner’s consent to satisfy the producer’s insurer - i.e., reduce the risks of having to defend against lawsuits and ensure coverage 12
  13. 13. What’s the nature of the sponsorship?Authorized Product Placements• When the placement is authorized, what can the brand owner do to protect its interests? • Specify “Placement” Rights in Writing - Helps sponsor get what it is paying for in terms of appropriate quality and amount of product exposure • Agree In Advance on Control Sponsor Has Over Brand Image - If it is not possible for sponsor to get approval and ultimate veto rights, then sponsor should at least seek (a) the right to be consulted, (b) an obligation on the producer to use its best efforts to resolve the sponsor’s concerns over insufficient/inappropriate brand exposure and (c) the right to require its trade- marks and logos to be blurred out to protect brand image 13
  14. 14. Who is the rights holder (sponsee)?Key Considerations• Identify the rights holder• Verify that it has the authority to grant the desired rights• Ensure that any required third party consents are obtained• Obtain appropriate reps and warrantiesExamples of Third Party Consent Requirements• Sponsorship rights granted by sports teams may be subject to superseding league rules or collective bargaining agreements• Performers may be restricted from performing certain songs or portraying certain characters without permissions 14
  15. 15. What are the sponsorship rights?Key Considerations• Almost anything can be sponsored. Seek solutions that align with marketing objectives, and don’t be afraid to be creative!• Definition of rights can be a tedious exercise. They must be thought out carefully and drafted precisely• Common drafting technique - to accommodate detail, incorporate rights as a schedule to the main agreement 15
  16. 16. What are the sponsorship rights?Sample Clause• Subject to the terms and conditions of this Agreement, and subject to the performance of the Sponsor of all of its obligations under this Agreement, the Sponsee will provide to the Sponsor during the Term the advertising, promotion, and sponsorship rights specifically set out in Schedule “A” (the “Promotional Rights”) to be exercised solely in connection with the products and services in the Category.Examples of required specificity• Size of ad displays (to the millimeter)• How long rotating signage is displayed for and when (in seconds)• Placement of product (including exact positioning of product, amount of time product is featured, how many mentions/uses are made of the product, etc.) 16
  17. 17. What are the sponsorship rights?A variety of sponsorship rights can be bargained for• Advertising (title sponsorship, use of trade-marks in advertising, pass-through rights for sponsor’s partners)• Merchandising (affixing trade-marks to product)• Product supply to league/team/athlete and/or at venue/event• Broadcasting (right to use footage, right to time slots, etc.) 17
  18. 18. What are the sponsorship rights?A variety of sponsorship rights can be bargained for• Others • Perks, such as free tickets and special access • Product displays and product placement • Public appearances by the sponsee or its employees • Having a special kiosk at events to display products • Holding contests featuring the sponsee (e.g., tickets to event) 18
  19. 19. Exclusivity and Carve Outs• Exclusivity clauses tend to be among the most heavily negotiated clauses in sponsorship agreements• Main interest of the sponsor • Maximize value of sponsorship rights by • Preventing competitor advertising in the space • Preventing overcrowding in the space generally• Main interest of the sponsee • Accommodate existing sponsorship arrangements • Maintain flexibility to accommodate potential new arrangements 19
  20. 20. Exclusivity and Carve OutsKey Terms• “Exclusive”• “Non-exclusive”• “Sole”Important Considerations• Types of products/services covered and carve outs• Duration• Geographic and spatial limitations• Temporal limitations 20
  21. 21. Exclusivity and Carve OutsTypical Structure of Exclusivity Clauses• General grant of exclusivity + carve outsExample The Sponsee hereby grants to the Sponsor the exclusive right to use the Sponsee’s trade-marks in connection with the advertisement of products in the Category. For the purposes of this Agreement, the term “Category” means and is limited to the following products: TVs, home audio, home appliances, notebook computers, and mobile phones. For greater certainty, the Category excludes uninstalled countertop appliances, computer software, computer hardware (other than notebook computers), mobile phone accessories, and any associated services.” 21
  22. 22. Licensing and Protecting IP• Sponsorship agreements commonly allow the parties to use each other’s trade-marks to associate themselves with one another - e.g., Coca-Cola and the Olympics• Key considerations for protecting IP • Maintaining distinctiveness of trade-marks • Dealing with newly created IP 22
  23. 23. Licensing and Protecting IPMaintaining Distinctiveness of Trade-marks• Failure to do this could mean trade-mark registration gets expunged• Appropriate licensing provisions are necessary• Licensor must exercise control over use of trade-mark • Examples • Restrictions on how and where a trade-mark can be used • Font, size, and colour specifications • Final approval rights for any use of trade-marks reserved by the licensor Licensor must then diligently police use of trade-marks 23
  24. 24. Licensing and Protecting IPDealing With Newly Created IP• Sponsorship agreement should determine who owns rights to newly created IP in order to prevent later disputes • Examples of new IP • Websites • Advertisements • Composite trade-marksOther Considerations• Indemnities 24
  25. 25. Payment of Fees and Other Consideration• Many ways to address payment of fees, including • Lump sum payments • Periodic or milestone payments • Contributions in kind • Any combination of above 25
  26. 26. Payment of Fees and Other ConsiderationLump Sum Payments• Benefit to the sponsee; may be acceptable in simpler agreementsPeriodic/Milestone Payments• Can tie the sponsee to specific performance milestones• Reduces risk to sponsor, especially in longer term sponsorships• Examples of milestones • Minimum attendance levels • Success fees (for athletes) 26
  27. 27. Payment of Fees and Other ConsiderationContributions in Kind• Sponsor may provide products/services in lieu of cash payments• Potential for win-win scenario • Sponsor reduces direct costs + may gain more exposure • Sponsee acquires needed products or services at a reduced price• Examples • Electronics manufacturer provides digital displays to an event • Sponsor provides training equipment/facilities to athlete • Note: Additional considerations when providing product (e.g., who bears risk of damage, who keeps product after event, etc.) 27
  28. 28. Commercial ConsiderationsReps and Warranties• Some common provisions include • Sponsee has obtained or will obtain all regulatory approvals and all agreements, rights, licenses, representations, and warranties necessary in order to carry out its obligations • Sponsee has not entered and will not enter into any agreements of any kind that would conflict with the rights granted to the sponsor • Sponsee has the legal ability to grant all rights associated with the agreement, including the use of names, trade-marks, logos, etc., with no further authorization or action necessary by the sponsor • Neither the event or the exercise of its rights under this Agreement by the sponsor will infringe upon the intellectual property of any party• Other warranties may stipulate standards of morality, cleanliness, security, etc 28
  29. 29. Commercial ConsiderationsTerm, Termination, and Options to Renew• Term • Consider extending beyond end of event• Termination • Address different possibilities (bankruptcy, force majeure, bad publicity, etc.) and the remedies that may be appropriate in the circumstances (rebate of fees paid, etc.)• Options to Renew • May only be possible in shorter term agreements. If not possible, consider an option to renew, possibly combined with an exclusive renegotiation period 29
  30. 30. Dispute Resolution• Some Considerations for DR Process to First Require Exhaustion of Alternatives to Litigation in First Instance • Keeps private the resolution of disputes (not made public/aired in open court) • Allows for flexible process to manage wide range of issues that can (and probably will) arise in long-term business relationship • Respects aspiration that sponsor and sponsee are “partners” in the business of co-promoting and building each other’s brands • May facilitate speedier resolution of disputes than litigation alone • May contain and make more certain legal and other dispute resolution costs (e.g., management effort and time) 30
  31. 31. Dispute Resolution• Process • Negotiation - structured and escalated • Mediation • Arbitration • Litigation - last resort 31
  32. 32. Key Elements of Sponsorship Agreement - Panel • Rights of first refusal and negotiation - • Labatt v. NHL - example and litigation RENEWAL OPTION - Before entering into negotiations with a third party for sponsorship rights with respect to the Canadian Territory within the Category for the period beginning immediately after expiration of the License Term, the NHLECos shall deliver to LABATT a written proposal for the renewal of this Agreement on or before October 1, 2006. Thereafter, LABATT will have the exclusive first right to negotiate the terms of a renewal of this Agreement for a period of sixty days … If, during such sixty-day period, LABATT and the NHLECos are unable to agree on the terms of such renewal, LABATT will, within fifteen days after the end of such sixty day period, offer to the NHLECos a proposal to which LABATT would be willing to agree. The NHLECos will then have ten days to accept or reject LABATT’s counteroffer, after which time, if the NHLECos reject LABATT’s counteroffer, the NHLECos will be free to negotiate the rights and benefits relating to the renewal with any third party; provided that the NHLECos will not offer any third party terms more favourable to such third party than those in LABATT’s counteroffer without providing LABATT the opportunity to accept such an offer within a ten-day period. 32
  33. 33. AMBUSH MARKETING &SPONSORSHIP ACTIVATION
  34. 34. LONDON 2012https://cot.box.com/s/r5m7l8obvprbg4
  35. 35. CANADIAN OLYMPIC TEAM MISSION VISION POSITION To lead the achievement of To make Canada a world The COC is the best-in-class the Canadian Olympic leader in sport, inspired by NOC providing support for Team’s podium success and the passion and performance athletes to perform at their to advance the Olympic of the Canadian Olympic highest level and inspiring values in Canada Team fans who are passionate about amateur sports
  36. 36. OUR PARTNERS’ BEST PARTNEROUR VISION: To be the best corporate marketing partner with areputation for quality, unparalleled service and delivering tangibleresults.OUR GOAL: To deliver best in class results for their business accordingto their objectives, contributing to the bottom-line profitability of theirorganization. The The STRENGTH The QUALITY PERFORMANCE of our brand of our people of our athletes
  37. 37. OUR STRATEGIES1. LEVERAGING AND NEGOTIATING WITH A SPONSOR2. LEGALITIES SURROUNDING SPONSORSHIP ACTIVATION3. AMBUSH MARKETING PRT
  38. 38. DOMESTIC PARTNERS
  39. 39. LEVERAGINGANDNEGOTIATINGWITH A SPONSORA. Beyond cash, what else can you ask for if you’ve hit the cash limit?B. Trading off legal obligationsC. The power of a strong brandD. Arbitration vs. LitigationE. Big Money = Expectations for Ambush Protection
  40. 40. LEGALITIESSURROUNDINGSPONSORSHIPACTIVATIONA. Devil in the detailsB. Graphics Standards ManualC. Brand Protection GuidelinesD. It’s more than Intellectual Property!
  41. 41. AMBUSHMARKETING• Tactic whereby advertisers associate themselves with an event/marketing property without securing official rights (no consideration, no contract, no relationship) 41
  42. 42. AMBUSH 2012• Total of 84 cases of Ambush Marketing in 2012 leading up to and during the London Games• Cases ranged from posing minimal commercial harm to major infringements taken over by legal counsel
  43. 43. AMBUSH CASESIN 2012 43
  44. 44. AMBUSH RATING SCALE
  45. 45. COMMON TRENDSDURING LONDON2012 GAMES• Congratulatory Tweets and Facebook posts and contests• Use of Symbols of London – Torch and Medal imagery, Tower Bridge, Big Ben, etc.• Use of “Olympics”, “Summer Games” in promotions
  46. 46. OLD NAVY• Considered to be a major• infringement• Unauthorized sale of Olympic T- Shirts in Canadian Old Navy Stores• Variety of registered trade marks were reprinted and sold• Case is currently in progress
  47. 47. BENJAMIN MOORE• Considered to be a major infringement• Facebook contest occurred during London 2012 Olympic Games• “Everytime your country wins a medal during the Summer 2012 games we’ll draw a winner to receive two gallons of Benjamin Moore paint.”• “Grand Prize: 2 winners will be chosen during Closing Ceremony to receive an iPad 3 loaded with Benjamin Moore colour tools”
  48. 48. ANTICIPATIONSFOR 2014• High level of Ambush Marketing• Russian imagery to start flooding advertisements• Increase in online activity and contesting largely due to time zone limitations 48
  49. 49. Ambush Marketing & Sponsorship Activation:Case Study• Budweiser Playoff Payoff Contest - Spring 2012 • Background to contest • Nature of contest • Ambush marketing? • Dispute with NHL • Resolution? A cautionary tale? 49
  50. 50. Case Study – Playoff PayoffBackground• In early 2011, Molson muscles out Labatt and becomes the new official beer sponsor of the NHL for North America, dealing a heavy blow to Labatt (a 7-year, $375M deal) “The NHL and the access it provides to Labatt ... is the single greatest opportunity to grow Labatt’s share in Canada … There is no other substitute for this national access to these consumers. The nexus of sports / heritage / emotional / tradition in hockey has no other Canadian comparable.” - Kyle Norrington, Mkting Director of Budweiser and regional brands for Labatt in Canada 50
  51. 51. Case Study – Playoff PayoffLabatt Strikes Back• Bud’s Big Game Commercial - Winter 2012 http://www.youtube.com/watch?v=y0qZYqdsYAg&list=UUJ36B8tFFZG8sHaLjAxS7zQ• Bud’s Playoff Payoff - Spring 2012 http://www.youtube.com/watch?v=M9HaXYb1hBU• Bud’s Deal with CBC’s Hockey Night in Canada - January 2013 • Multi-year contract to get Bud brand on CBC’s Coach’s Corner with Ron MacLean and Don Cherry 51
  52. 52. 52
  53. 53. Case Study – Playoff PayoffNature of the Contest• Labatt launched the Budweiser Playoff Payoff contest, coinciding with the NHL playoffs• The Prize = “Hockey Tickets for Life!” • The winner would get tickets to 20 home games a year for 50 years for the Canadian team of his or her choice• At least one implication • Drink Budweiser and you could win NHL tickets 53
  54. 54. Case Study – Playoff PayoffAmbush Marketing? • Labatt never explicitly promised tickets • Labatt never referenced any specific teams or leagues. • Advertising never made use of NHL trade-marks • Any associations with the NHL and the Stanley Cup Playoffs were specifically disclaimed 54
  55. 55. Case Study – Playoff PayoffAmbush Marketing? Disclaimer in Contest Advertising Budweiser is not an official sponsor of the NHL. The Playoff Payoff is not licensed by, sponsored by, or otherwise associated with the National Hockey League or its member teams. 55
  56. 56. Case Study – Playoff PayoffDispute With the NHL• NHL released the following statement: • “We want our fans to know that the NHL has no affiliation with that promotion, and we can offer no assurances to our fans that the desired tickets will be available to the winner.” • See terms and conditions on back of NHL ticket 56
  57. 57. Case Study – Playoff PayoffDispute With the NHL• Excerpt from Typical Ts&Cs on Back of Ticket to NHL Game IMPORTANT! PLEASE READ. WARNING! DESPITE ENHANCED SPECTATOR SHIELDING MEASURES, PUCKS STILL MAY FLY INTO THE SPECTATOR AREA. SERIOUS INJURY CAN OCCUR. STAY ALERT AT ALL TIMES INCLUDING DURING WARM-UP AND AFTER PLAY STOPS. IF STRUCK, IMMEDIATELY ASK USHER FOR DIRECTIONS TO MEDICAL STATION. The Holder, on behalf of the Holder and minor accompanying the Holder (individually and collectively, the "Holder"), is admitted on condition and by using this ticket and entering the arena, agrees to be bound by all of the terms of this ticket license. The arena is a strictly enforced smoke-free environment. Bottles, coolers and containers of any kind are not allowed into the arena and may be confiscated. Tickets obtained from unauthorized sources may be lost, stolen or counterfeit and may not be honored. Tickets cannot be replaced if lost, stolen or destroyed. This ticket is a revocable license which may be withdrawn and admission refused at any time upon refunding Holder the printed purchase price. This license will automatically terminate if any term is breached. Ticket may not be offered for resale in any manner which would violate any law or regulation. Ticket may not be used for any form of commercial or trade purposes, including, but not limited to, advertising, promotions, contests or sweepstakes without the express written consent of [NHL Team Name]. (“TEAM) … 57
  58. 58. Case Study – Playoff PayoffDispute With the NHL• Prize Description in Contest Rules There is one Grand Prize available to be won, consisting of two regular season tickets for twenty games per year, for fifty years, for a Canadian hockey team’s games held in Canada in that Canadian team’s city of the winner’s choice … approximate retail value … between $35,000 and $350,000. The approximate retail value will vary depending on the city selected. Location of seats will vary by game and by venue … If the Contest Sponsor is unable to secure tickets on the winner’s behalf to the winner’s city of choice, the Contest Sponsor will substitute a prize of equal value or cash. Winner may have the option of a single cash payment in the amount of $250,000 in lieu of the Grand Prize as described above. 58
  59. 59. Case Study – Playoff PayoffResolution? A Cautionary Tale? 59
  60. 60. NEGOTIATING SPONSORSHIPS • Sponsorship Strategy • Properties • Development • Execution
  61. 61. OLIVER GLEESONCORPORATE COUNSEL, SDIMKTG
  62. 62. CONTRIBUTION TO PANEL• Unique Perspective• Man in the Middle – “Go Go Go vs. No No No”• Black and White (Grey)• Increase your value to your clients or corporate marketing colleagues
  63. 63. STARTING POINTUNDERSTANDING OBJECTIVES• Pre-Fundamentals• Know the Story – “Cup of Coffee”; “Have a Beer”• “Spirit of the Agreement”• Good Faith• Risk Management
  64. 64. MIGHT DOES NOT ALWAYS MAKE RIGHT• Leverage key in negotiations• “Maxing” Leverage not always in best interest of your client Pro Con Protect Your Clients May be “offside” with intentions of parties Responsible to your Clients Deal may not get done Squeeze the Juice Reputation Tainted – yours or your client
  65. 65. WALKING THE “GREY LINE”PLAYING FAST AND LOOSE- ROAD HOCKEY TO CONQUER CANCER
  66. 66. WALKING THE “GREY LINE”PLAYING FAST AND LOOSE• Sponsor Activations• Promotions and Contests• Activating before Agreements signed• Understand what’s truly important
  67. 67. Questions 67
  68. 68. Bill Hearn, Davis LLP bhearn@davis.ca 416.369.5298 68
  69. 69. JOLAN B. STORCH General Counsel and Business Development Advisorjstorch@olympic.ca 416.324.4127
  70. 70. Oliver GleesonVP Business Development& Corporate Counselogleeson@sdimarketing.com416.640.8858
  71. 71. Thank You Disclaimer: This presentation contains general information only and does not constitute legal advice. Qualified legal counsel should be consulted to assess the application of laws to specific facts.13024331.1 71
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