This document summarizes some tactics brands use for ambush marketing during sporting events like March Madness, as well as the legal risks of those tactics. It discusses avoiding use of trademarks, giving away tickets or gifts to attendees, using disclaimers, and sponsoring athletes. However, it notes that while these may avoid directly using trademarks, they do not ensure a brand is clear of risks like confusing consumers or violating a sanctioning body's policies. Sponsoring athletes in particular can result in penalties for the athlete from groups like the IOC.

1. Mini Law Lesson: Can a Brand
“Ambush” March Madness
Brian Heidelberger
Winston & Strawn
bheidelb@winston.com

2. IMPORTANT DISCLAIMER
• This is not legal advice.
• I am not your attorney.

3. What is Ambush Marketing?
“Trading off of the good will of
an event without being an
official sponsor.”

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. So What Can a Brand Do?

6. Tactics: Avoid Use of Trademark

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. Tactics: Give Away Tickets
• “Win Tickets in the Coors Light Tourney Time
Sweepstakes”
– 2001 Coors Promotion

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. Tactics: Giveaways to Attendees

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. Tactic: Use Disclaimer
“This Ad Is Only Sponsored by
Us and No Third Party”

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. Tactics: Sponsor Athlete

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. More Videos?
Search Adage.com; or
Go to youtube.com/BrianHeidelberger
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