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Ambush marketing encompasses a wide range of marketing activities but can generally be said to be any marketing that takes advantage of the buzz and goodwill surrounding a high-profile event, typically a major sporting event such as the World Cup 2022, despite the advertiser not being an official sponsor or licensee for the event.
Tech & Marketing
Like most organizers of major sporting events, FIFA usually seeks to prohibit ambush marketing techniques by advertisers in connection with its tournaments. For example, for the World Cup 2022, FIFA warned that marketing activities that could create the impression that the advertiser and FIFA had a commercial association when there was no such official relationship were “not permitted and are subject to legal measures.”
Despite these warnings, the kick-off of the World Cup 2022 heralded an ambush-marketing avalanche. Notably, however, not all ambush marketers managed to avoid falling foul of the rules.
What legal measures may apply to ambush marketing?
Direct legislation: Unfortunately for would-be ambushers, it is increasingly common for the organizers of prestigious international sporting events (such as the Olympic Games) to require the host country to pass special legislation to protect against ambush marketing in connection with the event.
The powers introduced by such event-specific legislation are typically extensive, but there are normally gaps that savvy advertisers may exploit. Usually, event-specific legislation has only a narrow window of applicability, encompassing the period prior to and during the event in question. Similarly, event-specific legislation is unlikely to apply to ambush marketing campaigns that take place beyond the borders of the host country.
Proprietary rights: Event organisers such as FIFA commonly use trademarks, copyright, design rights and other intellectual property protections across multiple jurisdictions to provide wide protection against ambush marketing. For example, in the UK, the phrases “World Cup”, “World Cup 2022”, “FIFA World Cup 2022” and “Qatar 2022” are all FIFA registered trade marks. Significantly for advertisers, infringing such intellectual property rights can lead to substantial damages.
Indirect legislation, regulations, codes: Ambush marketing may be caught by rules in relation to misleading advertising where it leads consumers to infer an official connection between the advertiser and a particular event, organizer or participant, when in fact no such connection exists.
Top tips
Ambush marketing campaigns often push the boundaries of what is considered to be acceptable advertising. Before launching any ambush marketing campaign, take steps to mitigate commercial and legal risks. Here are some practical top tips to consider:
Don’t use any third-party intellectual property
Consider adopting an innovative way to refer to the applicable event in your promotional materials and social media posts rather than using the official name (for example, U.S. advertisers often choose to refer to the “Big Game” instead of the “Super Bowl”) to mitigate the risk of trademark infringement.
Make it clear that you’re not an official sponsor for the event
This may help to mitigate the risk of falling foul of advertising regulations by misleading consumers into believing that your brand is officially connected to a particular event when in reality it is not.
Location, location, location
Regulations on ambush marketing are territorial. The lack of harmonization across different jurisdictions means that would-be ambushers must be particularly careful when deciding where to target a campaign.
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