Modern day sporting events often fall under the category of multi-billion-dollar ventures and attract a lot of revenue as well as viewership from across the globe. In the world of sports, there are several instances wherein the ethos and integrity of any sporting event or tournament are questioned. Even though sports have many significant problems such as doping, match-fixing and corruption, one such sporting issue which does not attract much attention is ambush marketing. Ambush marketing is slowly becoming a major issue in the world of sport. In friendly and competitive sports, the competition amongst the global businesses to associate themselves with the sport has given rise to ambush marketing and trademark infringement.
WHAT IS AMBUSH MARKETING?
Ambush marketing is a concept wherein an entity or a business attempts to capitalize on a cheap marketing opportunity by trying to associate itself with a well-known sporting event. This generally happens when a business entity associates itself to some event without the prior consent of the authorities of the tournament or other organizers and other necessary parties.
Many companies use this strategy of marketing by becoming an unofficial sponsor at an event without entering into any licencing or a sponsorship agreement. Ambush marketing is a common marketing strategy for smaller businesses as it is the cheapest method of promoting brands to attract customers.
Ambush marketing consists of many strategic marketing practices aimed at influencing customers and viewers to refer to any particular brand. This includes the unauthorized use of logos, designs, pictures, advertisements and videos. This strategy helps the companies and brands to publicize themselves and reach out to the general public without incurring any extra costs on marketing. Ambush Marketing is typically targeted at major sporting events such as World Cups, the Olympics and the Commonwealth Games.
HOW DOES AMBUSH MARKETING DIFFER FROM SPONSORED MARKETING?
Under sponsored marketing, the parties enter into a formal Sponsorship Agreement or Memorandum of Understanding for the use of any well-known trademark or a copyrighted instrument. Such agreements discharge upon the licensee a formal right to associate itself with the licensor as it has paid the sponsorship fee, either in lump-sum or as royalty. Sponsored Marketing does not involve the risk of unethically alluding the customers’ attention. It is important to note that sponsored marketing does not jeopardize the intellectual property rights of any other competitors or well-known brands.
EVOLUTION OF AMBUSH MARKETING
The term ‘Ambush Marketing’ was first used in the 1980s, by Jerry Walsh whilst working in the marketing division of American Express. He referred the term as a situation wherein a product or a company tries to publicize itself by showing association with a major event without having contributed to the event in terms of finance or sponsorship.
Ambush Marketing as a phenomenon first came into the picture in the 1984 Olympics. It was the first time that the International Olympic Committee (IOC) had agreed to fund the Olympics privately, allowing many private investors and committees to apply for official sponsorships. However, the green light given by the IOC for private investments opened doors for many businesses, companies and brands looking to associate themselves with the event without paying the colossal sponsorship fees. Since then, ambush marketing started becoming a lesser-known, under-shadowed but a common problem in the Olympics.
In the 1996 Olympics, a sprinter named Michael Johnson won the Gold Medal for 400 Meter track race. Complimenting to his tall and muscular stature, there were these gold-coloured Nike shoes which were specially custom-made for him. The sparkling shoes attracted a lot of attention of the general public when it finally found its photographic mention on the cover page of TIME magazine, wherein the shoes hung around Johnson’s neck. By that time, Ambush Marketing had become a common strategy of marketing. In this case, even though Nike did not have any mala fide motive to ambush, yet it was in the limelight, thus, a need was felt was have a proper regulation to distinguish between Ambush Marketing and Indirect Ambushing.
EVOLUTION OF AMBUSH MARKETING IN INDIA
Initially, the concept of Ambush Marketing in India very nuanced. However, India also faced a problem of Indirect Ambush Marketing. In ICC Development International Ltd v Arvee Enterprises and Anr., Arvee utilized matchday tickets as prizes of their special occasions and the victor was to be offered passes to the World Cup. The textual and verbal expression used to promote the challenge was equivalent to what the ICC had got enlisted. Arvee was, along these lines, sued on grounds of passing off and trap advertising. Once more, the case of snare promoting was not perceived by the Court as the Court dismissed the application in light of the fact that the logo of ICC had not been abused and consequently there was no extent of any suspicion among the buyers of the litigants’ merchandise that there was any association between the respondents and the authority patrons of the occasions. The situation has been the same ever since.
TYPES OF AMBUSH MARKETING STRATEGIES
1. Direct Ambushing
When a brand directly tries to associate itself with a particular sporting team or an event without entering into a sponsorship, branding or a licencing agreement, it is known as Direct Ambush Marketing. The affiliation which the brand portrays which such sport or a tournament is void. Direct Ambushing is the most common form of fake affiliation in sports. This type of marketing strategy directly infringes the exclusive rights of other parties or brands which have entered into sponsorship agreements for a major sporting tournament. Using exclusive offers such as giving away tournament related merchandise for any purchases from the brand, or hosting any banners or flying any blimps on officially sanctioned tournament venue amounts to direct ambushing and puts the rights of the official sponsors in serious jeopardy.
Sprints Communication Co. used direct ambush marketing at the FIFA Football World Cup in 1994, utilising the event’s official logo without the consent of FIFA or Master Card, who had been given exclusive rights to use the emblem.
2. Associative Ambushing
When a brand or a company uses a common and well-known tagline associated with a team or a tournament to promote itself, it is known as associative ambush marketing. This type of ambush marketing is most commonly found in television and social media advertisements, wherein a brand uses some commonly used name, word or a reference which is associated with the happening of the event. This type of marketing strategy attacks the competitors who have official licencing agreement and is very difficult to recognize as it does not take place at the officially sanctioned match venues. Sometimes, advertisements can also use official match-day clips without authorization to gain the attention of the viewers.
In India, a famous contraceptive brand named ‘Durex’ uses the strategy of Associative Ambush Marketing. The brand, while making advertisements over social media, uses certain phrases or catchphrases of certain famous and important social, cultural and political events while trying to market its brand. This strategy, as applied by the company falls under the ambit of Associative Ambushing because it is not directly associating itself with any important occasion or events but the subtle use of phrases and texts from such major events is enough to attract the attention of the viewers.
Incidental Ambushing
When a company, by virtue of its previous tie-ups with a sporting event, uses this leverage to falsely associate itself with the event, it is known as incidental ambush marketing. Customers and viewers, by this virtue, are under the impression that such a non-sponsoring company is the official partner or sponsor.
4. Online Ambush Marketing
Activities such as Cyber Squatting, or websites using the event names and logos for any promotional offers to the people which implies their association with the event is known is online ambushing. This is commonly done by betting and fantasy sites to trick clients into believing in the brand’s excellent reputation.
Ambush Marketing generally jeopardizes the following bona fide rights of the event, sponsors and partners –
1. Trademark Rights
When a firm uses the tournament’s or any franchise’s trademark without permission, it infringes on the event and tournament organisers’ trademark rights while endangering the sponsors’ licencing rights. Infringement or dilution of a trademark of any type is a violation of the Trademarks Act, which can result in penalties in some circumstances.
2. Copyright
When a company, in order to associate itself with the tournament uses any copyrighted material such a match footage, player interviews, it infringes the rights of tournament copyright holders. Generally, this also infringes the rights of the Television Channels which pay nominal broadcasting fees to the tournament organizers to secure the broadcasting rights. Thus, any aggrieved party can file a complaint under the Indian Copyright Act.
URGENCY OF PROPER LEGISLATIONS IN INDIA
The illegal act of Ambush Marketing is very difficult to tackle since it is very difficult, even for the law enforcement agencies to recognize as to which marketing strategy constitutes ambush marketing. Sometimes, a sporting event may take place in France, but ambush marketing relating to that event can take place in India. Ambush marketers can take advantage of numerous legal and societal loopholes to fool their consumers by connecting themselves with the event and obtaining unearned recognition.
Ambush Marketing done in any sporting event is an unethical business activity. The lack of comprehensive legislation in India makes it difficult to trace ambush marketing and take timely legal actions. However, tournament organizers, bookies and stakeholders need to take some risk mitigation steps to recognize and stop ambush marketing in sports. A few steps which can be taken by the aforesaid authorities in this aspect are:
1. Brand Protection
Tournament and event organizers should take effective risk mitigation and prevention steps. This can be done by a well-planned monitoring programme, both online and offline. In any suspicious activity comes to the knowledge of any person, they should report it to the appropriate authorities or disciplinary bodies. This will help in addressing any trademark or copyright infringement or ambush marketing well in advance and will protect the interests of the tournament, participants and viewers safe.
It is also important to note that selling match tickets or hospitality packages from a draw of lots made after a consumer has made a significant purchase from a brand which is not associated with the event also qualifies as ambush marketing. Hence, businesses which are legally associated with a particular event needs to undertake strict monitoring check to ensure that their competitors are not undertaking such activities. There should be a proper strategy for mitigating ambush marketing done digitally.
In the case of ICC Development v Ever Green Service Station, The defendant was given an injunction for misusing the World Cup emblem only because there was a copyright violation since the logo was deemed an artistic work under the Indian Copyright Act.
2. IP Monitoring
Every well-known brand faces a risk of Intellectual Property infringement by their competitors, either due to unauthorized use of their trademark or copyrighted material or citing disparagement. Such brands, in order to protect their intellectual property, need to develop a robust IP Governance Mechanism and check whether there is any kind of trademark dilution of their brand. IP Monitoring is extremely important to maintain the authenticity of the business while fostering the confidence of the customers. Thus, recognizing and rectifying potential trademark dilutions is very important since there are many brands in the market which changes appearances and distinct shapes of well-known trademarks and use them as per their convenience. It is important to note that Trademark Dilution is an offence under the Trademarks Act.
3. Engaging with infringers and notifying Law Enforcement Agencies
Since the remote owner of sports rights is the organizer and manager of the event, combined with ambush marketing, it is easier to know whether there is trademark or copyright infringement. Since organizers and management directly sell their rights to sports teams, franchisees, sponsors, partners, and service providers, they must clearly identify these official partners on the officially authorized competition website and competition website. If there is suspicion of ambush marketing, punishment should be based on the code of conduct. Law enforcement agencies should be involved at the same time. To this end, sports agencies, organizers, and franchise agencies may also maintain contact with law enforcement agencies at the local, state, and national levels. The participation of these institutions will establish a clear governance agreement to prevent any sports-related fraud. In India, Ambush Marketing may also be reported as infringing intellectual property rights.
Final Thoughts
Ambush Marketing has been a topic of huge controversy. Lack of judicial mechanism to regulate unfair marketing strategies has kept the perpetrators at ease from any punishment. However, with the increase in popularity of sports and competition amongst various brands for sponsorship rights, a proper governance mechanism related to Ambush Marketing needs to be framed. In India, Ambush Marketing still comes under the purview of various Intellectual Property and licencing rights. Hence, a need for comprehensive legislation in India is indispensable. Even though there is a lot of debate as to what classifies as Ambush Marketing, it is very clear that any activity which jeopardizes the bona fide rights of anyone is deemed unethical.
