Ambush Marketing and Clean Zone Ordinances for the Upcoming 2012 Indianapolis Super Bowl


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With the upcoming Super Bowl in Indianapolis, it is expected that legal issues surrounding ambush marketing will become more prevalent, especially in view of the clean zone ordinance recently adopted by the City of Indianapolis. Ambush Marketing can be defined as when one brand pays to become the official sponsor of an event (e.g., the Olympics, the NFL, the World Cup) and another competing brand connects itself with the event without paying sponsorship fees.

Below is a presentation which discusses ambush marketing and ways to combat it. The presentation also covers laws used to prevent ambush marketing, such as the Olympics Symbol Act in relation to the 2012 Olympics in London, and the clean zone ordinances, adopted by Dallas for the 2011 Super Bowl as well as Indianapolis for the 2012 Super Bowl.

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  • The term ambush marketing was coined in the early nineties by Jerry Welsh while working for American Express. His original perception of ambush marketing was healthy competition in a climate of expensive and often ill-conceived sponsorships. Over time the expression has taken on a much more negative meaning and is now often thought of as something like commercial theft.
  • Coors Light was the official sponsor as of the 2010 season. In 2002 they signed a 5-year, $300 million deal for that right. In 2005 this was extended with a new 5-year deal at $500 million. New deal is reported at more than $1 billion for 6-years. However, Anheuser-Busch uses the Super Bowl as an advertising platform (22 consecutive Super Bowls) They also have sponsorship deals with 28 teams. Starting in the 2011 season, Bud Light will be the official beer. Official sponsor are buying the right to us the NFL’s trademark and logo in advertising. Other NFL sponsors: Gatorade is in an eight year contract where they pay the league $45 million annually in addition to $16 million per year in an additional marketing commitment and $1.2 million per year of Gatorade product for the teams. Visa is the official payment service, but MasterCard is a significant NFL advertiser (i.e., Peyton Manning CUT THAT MEAT) Key Point:: The NFL sells the official sponsorships and also negotiates lucrative deals with the TV networks. The TV networks in turn have to sell advertising to pay for the broadcast rights. Official sponsors pay the same rate for advertising as everyone else, making such conflicting marketing inevitable.
  • At the 2006 World Cup games,  fans of the team from Netherlands sported orange lederhosen which had been provided by Bavaria Brewery. Stadium officials responded by forcing those wearing the brightly-colored trousers to remove them if they wanted to be permitted inside the stadium. Budweiser was the official beer. Note that Bavaria is geographically misdescriptive, as Bavaria is a region in Germany, and the Brewery is in the Nerhterlands.
  • During the World Cup match between Netherlands vs. Denmark on June 16th, Bavaria did it again. During the match, 38 Dutch women stripped out of the clothes they had worn into the stadium to reveal orange mini-dresses underneath. The mini dresses incorporated the color of the Dutch national team, but also bore a tiny logo identifying Bavaria brand beer. The dresses had previously become associated with the Dutch Brewery Bavaria (at least in the Netherlands) when modeled there by a famous model. However, Budweiser was the official beer of the games and South Africa has significant anti-Ambush Marketing laws. The two ladies considered the leaders of the great orange mini-dress debacle were arrested by Johannesburg police and had their passports confiscated. A TV pundit also lost his job when it was revealed that he had provided the tickets to the group (He contends that he was unaware of the ambush marketing scheme and did not profit from it in any way). Charges against the ladies have since been dropped, their passports were returned, and Bavaria has entered into a confidential settlement agreement with FIFA. This was a great ambush success story though. The "net" is still buzzing about Bavaria. In fact, that infamous orange dress was also made available for purchase on Bavaria’s website. Instead of making a big deal out of this ambush, they should have instructed the TV cameramen to avoid taking pictures and not talk about the ambush on air. Limit the damage to the local area around the women.
  • Paddy Power, an online sports book, rented a field overlooking the first tee of the course at Celtic Manor where they 2010 Ryder Cup was being held and attempted to construct a large promotional Hollywood style sign stretching for 270 feet in length. The sign was visible from the course. A local court granted an injunction ordering Paddy Power to remove the sign within 3 days. This meant that the sign was gone by the beginning of the event although practice rounds had already occurred.
  • This has been called the greatest marketing ambush in sports history. Adidas, had spent nearly $200 million to become the official sportswear brand at the Beijing Olympic Games in 2008 - only to be ambushed quite spectacularly by the Chinese sportswear brand Li Ling. The problem occurred when Li Ning, a former gymnast and founder of the sportswear company, was chosen to light the Olympic cauldron at the opening ceremony. Li Ning was China's most decorated Olympian and a national hero. He was the first Chinese gymnast to win a medal in the Olympics, winning three golds, two silvers, and a bronze in the 1984 Los Angeles Games. During the opening ceremonies, commentators discussed that he owns a shoe company with the same name . The media exposure effectively gave his company a free ten-minute advert across China and the world. Additional confusion occurred because many Chinese consumer believed he was wearing his own apparel – when in fact he was legitimately bedecked in Adidas’ official Olympic clothing. To add to the confusion, Li Ning’s corporate logo resembles the famous Nike ‘swoosh’, while the company slogan, ‘Anything is Possible’, is similar to the Adidas tag line ‘Impossible is Nothing’. Other than controlling the announcers, there is not much Adidas could have done about this, other than not be a sponsor. Advice to sponsor clients, be careful.
  • Coca-Cola spent a total of $400 million on marketing in Beijing in 2008, including $85 million to be an Olympic sponsor, yet up to 60% of consumers believed Pepsi was the official sponsor. PepsiCo's highly successful marketing campaign included an online competition, in which 160 million voters from mainland China ranked mug shots sent in by fans. The winning entries were printed on cans cheering on Team China. Pepsi also replaced it's traditional blue cans in China with red ones "to show our respect to the year of China," says Harry Hui, Pepsi's marketing chief in China.
  • Nike Vs Reebok Nike’s ambush of the 1996 Atlanta Olympics demonstrated just how effective ambush marketing can be. By saving the $50 million that an official sponsorship would have cost, Nike plastered the city in billboards, handed out "swoosh" banners to wave at the competitions and erected an enormous Nike center overlooking the stadium. When television audiences were asked to recall the names of official sponsors, 22% cited Nike, compared to only 16% who cited the official sponsors, Reebok. Nike Vs Adidas During the lead up to the 2008 Beijing Summer Olympics, Nike made considerable use of the number 8, a symbol of luck and fortune in China and incorporated the design pattern on items of clothing and footwear. For the 2002 World Cup in South Korea and Japan, Nike spent $18 million on it's ambush by funding bus-side screens to display the latest scores, and hosting a mysterious "Scorpion" tournament featuring some of the world's best footballers. A December 2001 study found that, from a list of 45 likely sponsors of the 2002 World Cup, 20% of those polled picked Nike. Nike Vs Umbro English sportswear company Umbro had paid for the rights to be the official sponsor of the championships, only to find that Nike had purchased all the poster space and advertising sites in and around Wembley Park Underground Station, which was the main travel hub for England’s national stadium, Wembley. Nike Vs Converse Converse was the official sponsor of the 1984 Olympic Games held in Los Angeles, yet Nike built large scale murals near the Los Angeles Coliseum, which displayed the Nike Logo and several of the athletes competing in the games wearing Nike attire.
  • South African budget airline Kulula full page newspaper add. Indirect implication of sponsorship? Included hand drawn images of soccer balls and a stadium. FIFA said “the ad created a clear association to the tournament.” After receiving a complaint from FIFA, Kulula replaced the add.
  • Ticket example: back of ticket could include language prohibiting the use of the ticket for any form of commercial or trade purposes, including, but not limited to, advertising, promotions, contests or sweepstakes.
  • In NCAA v. Coors, NCAA sued Coors for using four tournament tickets as a prize in a commercial promotion. Claim was based on breach of revocable license and unfair competition. Case settled
  • To date, these ticket back terms have not been applied to sporting events in the US and have not been tested in US courts.
  • Association with the sponsored event is the key. No likelihood or intent to confuse is necessary. Move away from consumer protection toward property right protection
  • To combat Ambush Marketing, Clean Zones are being defined during large events to give exclusive rights to the event holder for local marketing.
  • Indoor advertising was not supposed to be impacted by the Ordinance, but several bar owners complained about enforcement that required removal of indoor signage. This was broadly enforced and included items such as sidewalk placard in front of restaurants advertising daily specials. The goal of the Clean Zone is to protect the investment of the trademark owners – not to protect their trademarks or the consumer Note that Cowboy Stadium is in the middle of nowhere, so the two-mile radius did not impact as many business as one would expect.
  • In 2006, Detroit’s clean zone extended 300 feet around the stadium
  • Ambush Marketing and Clean Zone Ordinances for the Upcoming 2012 Indianapolis Super Bowl

    1. 1. Ambush Marketing
    2. 2. POLL <ul><li>What is the “Official” Beer of the NFL®? </li></ul><ul><ul><li>Budweiser® </li></ul></ul><ul><ul><li>Bud Light® </li></ul></ul><ul><ul><li>Coors® </li></ul></ul><ul><ul><li>Coors Light® </li></ul></ul><ul><ul><li>Miller Light® </li></ul></ul><ul><ul><li>Miller High Life® </li></ul></ul><ul><li>Which Beer do you associate most with the NFL®? </li></ul>
    3. 3. Ambush Marketing <ul><li>Ambush Marketing is an outgrowth of official sponsorship of sporting events. </li></ul><ul><li>Ambush Marketing can be defined as when one brand pays to become the official sponsor of an event (i.e., the Olympics, the NFL, the World Cup) and another competing brand connects itself with the event, without paying sponsorship fees. </li></ul><ul><li>Successful Ambush Marketing reduces the value placed on official sponsorships. </li></ul>
    4. 4. Types of Ambush Marketing <ul><li>Predatory ambushing – intentional false claims of sponsorship. Can include unauthorized use of IP. </li></ul><ul><li>Coattail ambushing – brand association with an event through a connection that does not involve sponsorship. </li></ul><ul><li>Ambush by distraction – creating a promotional presence at or near an event to take advantage of the attention directed toward the event. </li></ul>
    5. 5. Ambush Marketing Examples
    6. 6. Ambush Marketing Examples
    7. 7. Ambush Marketing Examples
    8. 8. Ambush Marketing Examples
    9. 9. Ambush Marketing Examples
    10. 10. Ambush Marketing Examples
    11. 11. Ambush Marketing Examples
    12. 12. Advice to Combat Ambush Marketing <ul><li>Register trademarks and other IP rights associated with the event and be proactive in enforcing IP rights. </li></ul><ul><li>Impose restrictions on the media. For example, only allow broadcasters to film from locations where ambush marketing is not visible. </li></ul><ul><li>Events should purchase all billboard and advertising space in the vicinity of the event and re-sell it to official sponsors. </li></ul>
    13. 13. Advice to Combat Ambush Marketing, cont. <ul><li>Event organizers should ensure that the event location is free of any non-official advertising. This can include air space. </li></ul><ul><li>Athletes should be contractually restricted from displaying and promoting their own sponsors at the event. </li></ul><ul><li>Sponsors should also invest in media advertising that is available, and not rely primarily on their position as an official sponsor. </li></ul>
    14. 14. Legal Options to Enforce Exclusive Marketing <ul><li>Trademark Laws </li></ul><ul><li>Unfair Competition/Passing-Off Laws </li></ul><ul><li>Copyright Laws </li></ul><ul><li>Design Protection Laws </li></ul><ul><li>Specific Olympic Symbol Protection Laws </li></ul><ul><li>Special Legislation (event based) </li></ul><ul><li>Contract Law (e.g., ticket back language, contracts with athletes) </li></ul><ul><li>Local Ordinance (e.g., Clean Zone Ordinances – prohibit the sale or distribution of products for commercial purposes within a designated area) </li></ul>
    15. 15. Example Ticket Back Language <ul><li>Sporting event tickets can include language prohibiting the use of the ticket for: </li></ul><ul><ul><li>“ any form of commercial or trade purposes, including, but not limited to, advertising, promotions, contests or sweepstakes…” </li></ul></ul><ul><ul><li>“ Ticket Holder may not engage in any form of activity which may result in an unauthorized commercial association with _____ (i.e., NFL, FIFA, etc) </li></ul></ul>
    16. 16. 2010 FIFA World Cup Ticket Back <ul><li>Ticket Holders may not engage in any form of activity which may result in an unauthorised commercial association with FIFA, the [World Cup] or parts of it to the detriment of FIFA or its commercial affiliates, whether by way of an unauthorised use of logos or otherwise (“Ambush Marketing”) . . . Ticket Holders are strictly prohibited from using, wearing, possessing or holding promotional or commercial objects or materials, or offering to sell, selling or possessing with intent to sell drinks, food, souvenirs, clothes, or other promotional and/or commercial items . . . Ticket Holders are strictly prohibited from providing any type of commercial service or undertaking any commercial promotions in the Stadium, unless expressly authorised by FIFA . . . Ticket Holders are strictly prohibited from handing out pamphlets or information relating to, or in any way promoting or drawing attention to, any business, cause, charity or concern, whether commercial or not, in the Stadium, unless expressly authorised by FIFA . . . Tickets may not be sold, or otherwise included for commercial purposes, as part of a travel package (for example, combining Tickets with flights and/or a hotel room night) or as part of a hospitality package (for example, combining Tickets with pre or post Match catering services in proximity to the Stadia), without the prior written approval of FIFA. </li></ul>
    17. 17. London 2012 Olympics Example <ul><li>Olympic Symbol Act of 1995 </li></ul><ul><ul><li>Protects Olympic symbols, mottos and words </li></ul></ul><ul><ul><li>Established proceedings to enforce act </li></ul></ul><ul><li>Gave London Olympic Association (LOCOG) the exclusive right to grant its sponsors and licensees authorization to create an association between sponsors goods or services and the 2012 London Olympics </li></ul><ul><li>Gave LOCOG the right to prevent people from creating such an association without its authorization. </li></ul>
    18. 18. London 2012 Example cont. <ul><li>The Olympic Symbol Act of 1995 defined that any combination of two or more of the following expressions would be infringing: </li></ul><ul><ul><li>Group 1: games, two thousand and twelve, 2012 and twenty twelve </li></ul></ul><ul><ul><li>Group 2: gold, silver, bronze, London, medals, sponsor and summer </li></ul></ul><ul><li>Journalistic and honest commercial practices are listed as a defense. </li></ul>
    19. 19. London 2012 Example cont. <ul><li>The Olympic Symbol Act of 1995 gave LOCOG the authority to seek injunction for: </li></ul><ul><ul><li>Erasure/removal/obliteration of offending representation on infringing goods; or </li></ul></ul><ul><ul><li>destruction of the infringing goods; or </li></ul></ul><ul><ul><li>delivery up of the infringing goods </li></ul></ul><ul><li>Criminal sanctions: fines of up to 20,000 pounds plus discretion to order offender to pay expenses of the ODA and police authorities. </li></ul><ul><li>But, LOCOG can only sue to protect the Olympic brand. There is no statutory cause of action for other brand owners. </li></ul>
    20. 20. South Africa Legal Framework <ul><li>The Trade Practices Act of 1976 prohibits any unauthorized acts that suggest association with a sponsored event </li></ul><ul><li>Merchandise Action 1941 – The Minster of Trade and Industry is empowered to designate major sporting events as “protected events” where it is an offence to use a trademark to gain special promotional benefit from the Event. </li></ul><ul><li>The Advertising Standards Authority has a Sponsorship Code with provisions aimed at fair treatment of sponsors which prevents third parties from creating impression of association with a sponsored event. </li></ul>
    21. 21. Clean Zones – Coming Soon to Indy <ul><li>Clean Zones are designated areas around event facilities and hotels where only authorized vendors and sponsors are allowed to market. </li></ul><ul><li>Clean Zones are generally time and location restricted city ordinances that restrict marketing activities. </li></ul>
    22. 22. 2011 Dallas Super Bowl Clean Zone <ul><li>Ordinance was in force between Friday, January 21, 2011 to Monday, February 7, 2011 (the SB was played on February 6) </li></ul><ul><li>Ordinance originated in 2007 to comply with the NFL’s requirement to limit Ambush Marketing </li></ul><ul><li>The Clean Zone included a two-mile radius around Cowboy Stadium and certain areas in Dallas and Fort Worth. </li></ul><ul><li>Inside the Clean Zone(s), outdoor advertising was prohibited unless approved by the NFL </li></ul>
    23. 23. Dallas 2011 cont. <ul><li>The Clean Zone temporarily suspended issuance of certain permits including: </li></ul><ul><ul><li>Special Event Permits </li></ul></ul><ul><ul><li>Pole Banner Permits </li></ul></ul><ul><ul><li>Film Permits </li></ul></ul><ul><ul><li>Super Graphics and Building Wraps </li></ul></ul><ul><ul><li>Street Vending </li></ul></ul><ul><ul><li>Tent or Inflatable Permits </li></ul></ul>
    24. 24. 2012 Indianapolis Super Bowl <ul><li>Current Clean Zone ordinance will extend one-mile around Lucas Oil (all of downtown) </li></ul><ul><li>The Clean Zone prohibits temporary advertising, signage, or erection of structures </li></ul><ul><li>The Clean Zone also regulates all transient merchant, vendor, or otherwise licensed activity </li></ul><ul><li>They are considering temporarily relocating the U.S. Post office facility from across the street </li></ul>