Ambush marketing is the term used to describe brands that directly or indirectly try to associate themselves with an event which they are not an official sponsor of. Naturally, it can cause huge frustration to both the event organisers and the official sponsors that will usually have paid huge sums of money to formally associate with the event and benefit from its goodwill. Businesses engaging in ambush marketing activities therefore need to be very careful to ensure that they do not breach any laws or regulations, for example by infringing a registered trademark, otherwise they may find themselves on the receiving end of a costly lawsuit or regulator action.
No bespoke legislation for the Rugby World Cup
Some events benefit from bespoke legislation that is specifically designed to prevent ambush marketing. This was the case for both the London 2012 Olympics and the Glasgow 2014 Commonwealth Games, but no such legislation has been passed for the Rugby World Cup 2015. This means that the event organisers, chiefly Rugby World Cup Limited, will have to rely on existing laws and regulations and other more practical measures in order to prevent ambush marketing.
Intellectual property laws
Various intellectual property rights could potentially be utilised by the organisers of the Rugby World Cup to prevent ambush marketing.
The event organisers hold a number of registered trademarks relating to the tournament including but not limited to RUGBY WORLD CUP, RUGBY WORLD CUP 2015, RWC 2015, ENGLAND 2015 and WORLD IN UNION. They have also trademarked certain logos and the Webb Ellis Cup. Use of any of the organisers' registered trademarks (or any similar marks) by an ambush marketer could lead to a trademark infringement action, although whether this would succeed in court would of course depend on the circumstances.
Logos, photographs, event footage and other official imagery for the tournament are likely to attract copyright protection which could be relied upon if an ambush marketer used any of those assets in its activities.
In addition to possible trademark and copyright infringement actions, the event organisers could also potentially bring a claim under the tort of passing off. In order to do so they would need to establish that: (1) the Rugby World Cup has established reputation or goodwill which accrues to the event organisers, (2) the ambush marketer has made a misrepresentation that it is associated with the Rugby World Cup, which would usually be evidenced by showing confusion amongst the public, and (3) the event organisers have suffered or are likely to suffer damage as a consequence.
CAP/ BCAP Codes
Whilst the CAP and BCAP Codes, the self-regulatory codes which govern UK advertising, do not prevent advertisers from mentioning events such as the Rugby World Cup if they are not official sponsors, it is worth remembering that they do contain a number of general rules against misleading advertising. The Codes also prohibit advertisers from taking unfair advantage of a competitor’s trademark and require them to hold evidence as to the genuineness of any endorsements.
Guidance from the Committee of Advertising Practice (“CAP”) indicates that any suggestion that a brand has an official connection with an event when this isn’t the case is likely to result in the Advertising Standards Authority (“ASA”) finding the advertising misleading in the event of a complaint. The overall impression of the ad, including any imagery used, would be taken into account. An adverse ASA adjudication can attract significant negative publicity.
The organisers of the Rugby World Cup have ensured that the terms and conditions for tickets to the matches include some protections against ambush marketing.
There are strict rules on the transferability of tickets, which expressly prohibit ticketholders from transferring, using or otherwise disposing of their tickets in relation to any promotional or commercial purpose without the prior written approval of the organisers. This clearly covers providing tickets as prizes in a competition or sweepstakes without approval. It is worth noting that breach of this provision may result in the relevant tickets being cancelled.
Furthermore, the ticket terms and conditions allow the organisers to refuse admission to the venue or eject from the venue any ticketholder who (a) brings or attempts to bring into the venue objects bearing trademarks or other promotional messaging which the organisers believe are for ambush marketing purposes, or (b) whilst within any venue or in the vicinity of a venue engages in any form of activity related to ambush marketing.
All outdoor media sites close to the stadiums where matches will be played have also been secured by the organisers to prevent them being utilised by ambush marketers.
What should businesses do?
The increase in popularity that rugby has enjoyed over the past decade or so and England's status as host nation mean that there is an increased likelihood of ambush marketing occurring, but also that the event organisers will probably take a harder line on enforcement.
Taking into account the following hints and tips when preparing any copy should help to reduce the likelihood of non-sponsors encountering any issues:
- Avoid using registered word marks such as RUGBY WORLD CUP, ENGLAND 2015 and RWC 2015 as well as any other phrases, slogans or taglines that are associated with the tournament.
- Don't use imagery that may be protected by trademarks or copyright such as the Webb Ellis Cup and the England 2015 logo.
- Avoid using colour schemes that are associated with the tournament, its organisers or sponsors.
- Be careful not to create any unauthorised associations with certain players or teams as this can also lead to legal issues.
- Generic images of rugby balls or references to watching sport are unlikely to cause problems in isolation, but advertisers should always consider the overall impression created by their ad.
Clearly ambush marketing often involves treading a fine line between referencing or alluding to an event appropriately and misleadingly suggesting an official association.
Those seeking advice about specific concepts or campaigns are welcome to get in touch by e-mailing me at email@example.com.