Reed Smith In-depth

In spite of the various legal and commercial risks associated with it, ambush marketing is a global phenomenon. Provided that these risks are managed correctly, ambush marketing can allow an advertiser to benefit from the buzz around an event without having to shell out on expensive sponsorship fees, settlements or damages. Even as teams make their final preparations to travel to Qatar, advertisers will undoubtedly be waiting to unleash an ambush marketing avalanche. But what is ambush marketing? 

1. What is ambush marketing?

There is no established definition, but generally it can be said that ambush marketing occurs where an advertiser promotes its brand, products or services in a way that takes advantage of the marketing activity and goodwill surrounding a high profile event (typically a prestigious sporting event such as the Super Bowl, the Olympic Games, the FIFA World Cup, the UEFA Women’s Euro, Wimbledon or The Masters), despite not being an official sponsor or licensee for the event.

Accordingly, ambush marketing encompasses a wide variety of marketing techniques, with most falling into two categories: (i) ambush by association; and (ii) ambush by intrusion. Ambush by association occurs where an advertiser uses a promotion to suggest that the advertiser has an official connection with an event, its organisers or its participants when it does not. Ambush by intrusion occurs where an advertiser seeks to gain exposure at or near the physical location of the event.

The lack of an established definition of ambush marketing means that ambush marketing can be interpreted widely or narrowly. Unsurprisingly, in respect of the FIFA World Cup 2022, FIFA has adopted a wide definition. FIFA considers ambush marketing to be activities that try to take advantage of public interest in a particular high profile event by “creating a commercial association and/or seeking promotional exposure without the authorisation of the event organiser”. According to FIFA’s Brand Guidelines, activities that create an “undue commercial association” (i.e., that make it appear as if the company is associated with FIFA or the World Cup 2022 when there is no official relationship) “are not permitted and are subject to legal measures”.

2. What legal measures may apply to ambush marketing?

There are various legal measures that may apply to ambush marketing, either directly (such as through legislation) or indirectly (such as through general advertising regulations and civil protections for proprietary rights).

A. Direct legislation

Typically, national laws provide little direct protection against ambush marketing. In the UK, for example, there are no laws that directly prohibit ambush marketing.

However, it is increasingly common for the organisers of prestigious international sporting events to require that the host country agrees to pass special legislation for the event to protect against ambush marketing – this is, for example, a requirement for any nation bidding to host a summer or winter Olympic Games.

Prior to the London Olympic Games 2012, the UK introduced the London Olympic Games and Paralympic Games Act 2006 in part to provide additional protections against ambush marketing. The Act provided additional legal protection given to the Olympic symbol, as well as expansive protections in relation to intellectual property, words and phrases associated with the games. It also imposed controls on advertising and street trading around Olympic venues. This is a key advantage offered by event-specific legislation, as ambush by intrusion is rarely caught by general advertising legislation, so additional powers are needed to give event organisers (and their sponsors) the ability to enforce third party advertising exclusion zones both in and around stadiums and also in relation to broadcast media for the event.

Whilst the powers introduced by event-specific legislation are typically far-reaching, there are some significant limitations. First, event-specific legislation typically has a narrow window of applicability, encompassing the period prior to and during the event in question. For example, the advertising provisions of the London Olympic Games and Paralympic Games Act 2006 no longer have any effect following the end of the London Olympics period. Second, event-specific legislation normally has limited territorial application: ambush marketing campaigns that stay beyond the event host country’s borders are unlikely to be caught under such event-specific legislation. This means that even where specific legislation is introduced to protect against ambush marketing in relation to an event, there is likely to be a gap in direct legal protection that advertisers may take advantage of. For example, in relation to the World Cup, whilst seeking promotional exposure in connection with the World Cup without FIFA’s authorisation is prohibited under FIFA’s brand guidelines and in Qatar (as explored in further detail below), it is not directly prohibited under UK law.

B. Indirect legislation, regulations, codes 

In the UK, although there are no explicit advertising rules regarding ambush marketing, some forms of ambush marketing may be caught by rules in relation to misleading advertising.

For example, the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) provides that “marketing communications must not materially mislead or be likely to do so” (Rule 3.1), and the Advertising Standards Authority even releases guidance on ambush marketing from time to time (see, for example, “Sportsmanlike Advertising for the Euros and Olympics”).

This means that advertisers must be careful not to mislead consumers into believing that there is an official connection between the advertiser and a particular event, organiser or participant (such as a team or player) when there is no such connection.