What comes to mind when you see thirty women wearing orange mini-dresses? If you said ambush marketing, you may be correct. Companies spend substantial sums to sponsor high profile events, such as the FIFA World Cup. The benefits of sponsorship generally include exclusive advertising rights associated with the event. Occasionally non sponsors may use techniques known as “ambush marketing” to leverage their own marketing campaigns at high profile events. Ambush marketing is not always easy to police. Even if legal action is available, it is often only available after the ambush has occurred.
The World Cup is a prime target for ambush marketing given the worldwide attention it attracts. Recently, Bavaria NV, a Dutch beer brewery (which is not an official sponsor of the World Cup), sent more than thirty women wearing orange mini-dresses to a match in order to promote the brewery’s ongoing beer advertising campaign in the Netherlands. An equal opportunity ambusher, Bavaria enlisted a group of men to attend matches at the 2006 World Cup wearing orange lederhosen with a distinctive black tail that displayed the company’s name. A South African budget airline has also attempted to use the World Cup’s popularity to its advantage.
In response, FIFA (as well as other international sporting organizations) has developed a global rights protection program. The program entails close collaboration with local authorities in an effort to address ambush marketing strategies as soon as possible. Moreover, South Africa, in anticipation of the World Cup, passed anti-ambush marketing legislation that outlawed the misuse of registered marks and unfair competition. Although these rigorous action steps may help FIFA’s policing efforts, the challenge for an “official sponsor” remains how to effectively protect against ambush marketing before it occurs.
In the United States, the US Soccer Federation obtained a preliminary injunction against retailer The Sports Authority (TSA) over TSA’s use of advertisements during the World Cup that included official US Soccer trademarks. In its complaint, US Soccer alleged that TSA's advertising campaign infringed on Dick’s Sporting Goods’ official sponsorship relationship with US Soccer. While the ads had already appeared during the US-England match, the injunction was filed to prevent TSA from running the ad during the US-Slovenia match on Friday, June 18 -- the day after the order was obtained.
The Lanham Act provides potential remedies for ambush marketing that results in consumer confusion, or the likelihood of consumer confusion, regarding the relationship between the company being advertised and the targeted sporting event. However, US courts also recognize a company’s First Amendment right to engage in commercial speech if consumer confusion is not threatened. Accordingly, organizations such as FIFA, as well as its official sponsors, will no doubt continue to look for new and better methods of protecting their relationships and the benefits that sponsorship provide. The beginning of Wimbledon this week will undoubtedly give rise to a whole new array of ambush marketing opportunities and the corresponding policing challenges.
- Suzanne Wilson and Andrew Macurdy
