Author : Ihsan Shahzad P.A., Student at Christ University, Bengaluru
Co-Author : Dilshath Raihana ,Student at Christ University, Bengaluru
The management of sporting events is becoming important for the event sponsors to curtail infringement of their intellectual property rights. Even though the Trademarks Act protect the logos, slogans etc. connected to the event, indirect methods of ambush marketing still threatens the rights of major sponsors. Thus the article tries to analyse the concept of ambush marketing in sports events, the unfair trade practice of ambush marketing across the globe and violation of intellectual properties like trademarks, copyrights, etc. through ambush marketing techniques. Further it explains need for protection of intellectual property rights, by classifying ambush marketing as direct and indirect and by pointing out different instances of trademark and copyright violation through ambush marketing techniques in India and across the world. Finally the article concludes by highlighting the need for formulating legislation in India and the role it can play to help the hard hit sports sector during the pandemic.
Ambush Marketing, Intellectual Property Rights, Intellectual Property Violation, Protection, Trademarks, Covid-19.
The Sports business has consistently been a huge part over the world unifying entertainment, culture and money related business. With the business value of games developing constantly, intellectual rights (IPRs) vesting in pretty much every segment of the games business are being taken advantage of and promoted. IPRs are properties that are utilized as marketing devices towards the branding of sports and associated events, sports clubs, teams, superstar status and so forth. Trademarks are used in creation, support, advancement and sustenance of marks, logos and characters, while copyrights vesting in brand and image creation and etc. are also protected under IPR. Different football clubs far and wide are an ideal case brand formation. Chelsea, Manchester United, Real Madrid, Barcelona and Liverpool are a couple of instances of football clubs that have been created and promoted as colossal brands worth a huge amount.
Trademarks are vital in sports. Sporting events are branded through the logos, captions, taglines, team names etc. Team names and logos attract the public and create a fan base. The players also get celebrity status which can be extended as personal rights. This has increased monetary benefits of sports. These rights can be exploited for profits. Domain names have the same protection like a trademark by Indian Courts. Information and live broadcasting are done through the internet .this has indeed given cyber squatters opportunities to manipulate online ticket sales and sale of merchandize etc.
Copyright in sports can be given to artwork connected to logos, slogans etc. Even though copyright registration is not mandatory in India, since India is a signatory to Berne Convention of 1906, international copyrights are protectable in India. Sports moves however cannot be protected as a primary work. The idea of sui generis right or neighbouring right is applied under the copyright act for its protection. Section 2(q), section 2(qq), section 38 and section 39 were added by 1994 amendment to the copyright act which deal with performers right. The 2012 amendment act added section 38A and 38B which deals with performer’s economic and moral right.
Licensing and franchising oversees the brand building of teams by selling the exclusive merchandize associated with them. The lack of protection of IPR leads to increase in the counterfeit products. The Court of appeal after overturning the decision of the European Court of justice held that Arsenal F.C. holds the trademark over both the words ARSENAL and the ARSENAL Cannon Device. The defendants action of selling the souvenirs and other club merchandise was without license, hence infringing.
Protection against ambush marketing is another intellectual property protection associated with sports. Ambush marketing is the unfair marketing strategy adopted by companies by which they associate themselves with a team or event without any cost. The famous clash between Coca Cola and Pepsi over the cricket world cup 1996-97 is an example of ambush marketing. Coca Cola introduced an ad claiming that they were the official cola of the tournament. Pepsi countered it with another ad with slogan “there is nothing official about it”.
AMBUSH MARKETING AS A THREAT TO INTELLECTUAL PROPERTY RIGHTS
The practice of ambush marketing campaign was first reported to be occurred at the 1984 Los Angeles Olympic Games. The different categories of ambush marketing are not finite. Ambushers promote their brand by highlighting the sports stars, stating that these sports stars use their products. For example, the Brazilian beach clothing brand, Blue Man, gained reputation by posting pictures on its Facebook and Instagram handles. It showed famous Brazilian footballer Neymar showing his Blue Man underwear while lifting his jersey up at a FIFA World Cup match. Beats electronics launched campaigns during Olympic Games in London and Rio by providing free Beats headphones to athletes who wore them to the event venues and some also tweeted about them. Sometimes the spectators also play leading roles apart from the sports persons. The Bavaria beer company made groups of women to wear orange outﬁts and sit together at a FIFA World Cup match to draw attention of others to their brand. In 2017 during the Indian Premier League was sponsored by Vodafone. During a match Reliance Jio made certain spectators of the match to wear black and white shirts to develop a pattern which could be read as ‘JIO’ and made it visible to the people in the stadium and also the television viewers. They ambushed the official sponsors Vodafone.
Ambush marketing is the successful communication to consumers some association of a particular brand with a sporting event without actually purchasing the legitimate sponsorship rights over that event. In the context of global sporting events, it has been used by local companies such as bakeries offering goods related to the event, as well as by global companies whose respective competitors engaged in official sponsorships of global sporting events, such as Fuji and Kodak, Coca-Cola and Pepsi, or Puma and Nike.
Ambush marketing as a technique of effective and cost-free marketing has been increasingly practiced over recent years. This is because there has been a simultaneous attempt on the part of the competitors of these legitimate sponsors to react to event organiser’s policy of limiting the number of sponsors and the high cost of sponsorship rights. Also, the organisers of the event promise exclusive sponsorship rights in product categories. Thus the most common form of intrusion by ambush marketing is the attack on the exclusivity of sponsor’s rights. This is possible because buying a sponsorship only entitles you right of official sponsor status and a bundle of sponsorship rights and not the exclusive right of association with the event.
Ambush marketing can be divided into direct and indirect ambush marketing. It includes directly infringing the right of an event sponsor by using the logos and slogans of a major event (like the World Cup, Olympics etc.). It also includes indirect ambush marketing methods such as:
- Putting up advertisements around event venues aiming to allure spectators and television coverage.
- Distributing free branded merchandise to spectators at venues
- Using event tickets as prizes in consumer prize draws.
The Canadian Court decision with regard to National Hockey League(NHL) when the coca cola tried to ambush Pepsi is another important decision. Coca cola became sponsors of NHL by contracting with NHSL, the body engaged in licensing for the NHL. The contract gave them marketing rights in places except television games in Canada. The NHL gave these rights in Canada to ‘Molson Breweries’, who eventually sold them to Pepsi. Pepsi used these rights to engage in campaigns promoting hockey. The Court observed these acts not violating of Canadian trademark laws. Moreover it was NHL themselves who sold the rights to multiple persons. This decision is actually helping the people who try to engage in ambush marketing.
The intellectual property regime of India has not yet passed any law to protect rights of event sponsors. The Court has taken two distinct views while deciding the usage of symbols of the event or sports organisers to derive commercial gains. In the first case ICC Development ICC Development (International) Ltd filed suit for injunction claiming, they exercised the sole authority over the Intellectual Property Rights of all ICC events and defendants misrepresented their affiliation with ICC conducted World Cup. Using the offending slogans and media advertisements made in newspapers, televisions, magazines, etc. was an attempt to piggyback the plaintiff’s reputation. But the Court rejected the claims of plaintiff and held there was no misuse of ICC’s symbol. Therefore there is no scope for confusion in the minds of the purchasers of the defendant’s products and the official sponsors of the events. In the second case the Court took a U-turn and held that Indian Copyright Act extended protection to logos as artistic work and granted an injunction against misuse of the ICC logo by the defendant.
In direct ambush marketing the actual trademarks of event organizers are visibly used for marketing. Indirect ambush marketing is difficult to spot as the marketer capitalizes on the event but does not use the event’s trademark. For example, advertising a product near the event featuring the people participating in the event or using a set of words, designs, colours or colour schemes, which imply the events.
Some of the examples in real time in the international sphere include Nike’s campaign named Find Your Greatness during the 2012 London Olympic Games. It filmed ordinary people doing all kinds of sports in locations London, England- like London, Nigeria, London Gym etc. Puma once marketed the forever faster slogan associating it with Usain Bolt’s achievements. After Ussain Bolt with his puma shoes, won the gold medals in the 2016 Rio Olympic Games, puma marketed by posting in social media “when you are @Usain Bolt, you are #ForeverFaster”.
Another instance of ambush marketing occurred during 2018 Winter Olympic Games. In Pyeong Chang, an advertisement series were made by SK Telecom. The advertisement contained reference to the games and also were acted by Korean Olympic athletes. The Korean Intellectual property office found violation in this marketing since it curtailed the rights of the official sponsor of the event. Physical intrusion into the event by Beats was seen in London Olympics when the company distributed Beats headphones to athletes. The athletes wore them in the field and were caught on cameras and the people in the stadium.
There is dire need for Legal protection against the practice of ambush marketing against different types of sponsorship and other endorsements. Legislating new, special and advanced laws against this illicit practice violating the intellectual property rights of legitimate sponsors and shall be a support for organizers of sports events and competitions. It is also very imperative that sponsors and other right holders make an active policy for the registration and protection of their intellectual property rights associated with sport events.
Countries have tried to jump over the hurdle created by ambush marketing either by event specific legislation or by amending their laws. These countries include Australia, China and U.K. during Olympics and Canada during Winter Olympics. The Major Events Management Act, 2007 of New Zealand protects this right of sponsors and event managers against the menace of ambush marketing. China’s Protection of Olympic Symbol Regulations covered ambush marketing protecting rules.
There is difference in approach towards the protection against ambush marketing. Various countries have approached the unfair marketing practice differently. The impact of event-specific legislation has to be discussed in detail in order to draw a comparison with a particular legislation like New Zealand’s Major Events Management Act, 2007. The various international conventions protect Olympics and the symbols. Further, major events like FIFA World Cup, Cricket World Cup etc. have seen instances of ambush marketing. Taking these into consideration, the practice of ambush marketing has invoked the protection of rights of event sponsors as well as that of consumers.
Ambushers may also give tickets to events as prize lotteries to raise their company popularity. These examples draws light upon three lessons mainly. Firstly, ambush marketing does not always require a direct violation of an Intellectual Property Right. Secondly, different promotional strategies are covered by the word ‘ ambush marketing. Thirdly, the ‘injury’ induced by ambush marketing is difficult to measure. Evidently, what ‘ injury ‘ caused, if any, from Blue Man’s campaign remains obscure.
Jerry Welsh, former Marketing Director at American Express, first coined the term ambush marketing to explain ‘marketing strategies that use the same themes as sponsors to vie with them for market pre-eminence’. Apart from this definition, there are various views on definition of ‘ambush marketing’. Sandler and Shani describe it as a ‘planned campaign by a company to associate itself with any event, like sports events, for gaining some recognition that is associated with being an ofﬁcial sponsor’
According to the definition given by IOC, Ambush marketing is any action by a firm creating an association with an event. This association is aimed at confusing the consumers as to the sponsors of the event and thereby infringe the rights of event sponsors. Ambush marketing has become a problem for major sporting events organizers as well as their ofﬁcial sponsors. In most jurisdictions, the aggrieved parties rely heavily on trade mark legislations to curb ambush marketing.
However, in the case of ICC Development (international), ambush marketing during the same 2003 cricket world cup decision was different. In ICC Development (international) vs. EGSS, the plaintiff –ICC development (international) Limited pleaded that the plaintiff company consists of International Cricket Council members and owns and controls the commercial rights associated with the event. The plaintiff has applied for trademark registration of the words “ICC World Cup South Africa 2003”, the event logo, and the mascot – dazzler throughout the world and in India as well. The World Cup, being a lucrative event has to be supplied with enough funds to meet the monetary expenses. Such funds are incorporated from official sponsorships. The plaintiff and the sponsors have the exclusive right to exploit the image of the event and only the sponsors have the right to associate with the event. The first defendant is a service station engaged in the sales of petroleum products of the second defendant – HPCL. The plaintiff alleged that the defendants are misrepresenting their association with the event by advertising and by distributing pamphlets; brochures etc. and are thereby piggy backing on the reputation of the plaintiff and the event. The defendants also organized a contest named “Race 4 the World Cup”. The injunction was granted against the defendant as the defendant used the logo and amounted to copyright infringement.
The IOC and FIFA implemented extensive trade-mark filing policies as a first step to counter ambush marketing. In this context, the IOC filed an application for that year the Sochi Olympics(‘ 2014’), nine years prior to the actual event for a Community trade mark (CTM) laying claim on all 45 potential registration classes under the Nice Classification. FIFA also filed wide ‘ PLACE+ YEAR’ word mark applications to the candidate countries hosting the 2022 World Cup tournament. An example of this would be the word mark ‘ England 2022, ‘ which was filed by FIFA on 19 May 2009.
Such marks are often registered even if they face dilemmas of descriptivity and distinguishability, still they these trade-mark rights are carefully implemented when registered. Possible infringers also receive letters of’ cease and desist’ and might even be hit with litigation. Event organizers have placed contractual limitations on ticket reselling, instituted audience ‘ dress codes’ and restrictions at event locations, banned athletes from entering into sponsorship deals with non-sponsors, and implemented public relations programs campaigns against ambushers. ‘Public Guidelines’ were propagated by FIFA and has also published an open letter on its website, stating the limits of usage of its Intellectual property.
AMBUSH MARKETING AND MANAGEMENT OF SPORTS EVENTS AMIDST COVID-19
Ambush marketing is a “dishonest, parasitic, and illegal way to do business” according to IOC. It is also regarded as ‘an Olympic headache’ and ‘event piracy’. But the reaction of public and media towards ambush marketing is found to be positive. They admire the efforts and creativity of the ambushers at times. The non-sponsors can commercially exploit everything other than specific licenses provided to the sponsors. The sponsors do not purchase rights to exploit the entire event or the space in which the event is happening. Thus the non-sponsors may think out of the box and find creative ways to intrude into the event and exploit the space. These non-sponsors engage in different activities which are against intellectual property and trade laws. These activities involve confusing and deceiving acts which amounts to free riding. Thus, these practices should be prohibited.
The Covid-19 pandemic has hit the whole world really bad. The impact it has made is spread all over. Sports sector has been hit really badly during the pandemic. All major sports events stopped during this pandemic. The games had to be postponed. Sometimes the leagues had to be cancelled too. Even the Tokyo Olympics is under a threat of being cancelled. The major football leagues all over the world had to be stopped. There were instances like Serbian tennis star Novak Djokovic organizing a tournament to salvage the tennis players severely hit by the pandemic. Unfortunately this event also became an issue as social distancing guidelines were not followed in the tournament and it became a hotspot of the virus. Such incidents which happened because of the pandemic have made the situation even worse for the sports sector. Moreover, when the leagues and tournaments were allowed to resume, fans and spectators were not allowed near the stadium. All the major leagues finished their season without the fans. The tickets sale constitutes a significant portion of the revenue of the clubs and athletes all over the world. Therefore, the sudden pause in sports sector has impacted their revenue and also made brought their ticket sale to zero. The sponsors of these events are getting fewer benefits because of their sponsorship deed. In such a situation, the threat to the intellectual property rights of the sponsors by ambushers will make the situation more difficult for them. The management of events happening in the country thus becomes important during and after the ‘Covid era’. Legislations to manage such events are thus important in smooth functioning of major sports events. The menace of ambush marketing will make the situation worse for already struggling sports sector. Thus the legislature is bound to make laws to save the sinking sports sector. Nevertheless, such a regulation will also make an impact in tourist sector by attracting more tourists to the country after the pandemic. The global sports sector whose estimated value touches USD 756 billion annually is under threat of many employees being fired. The government has to support the sector with technological and legislative helps. This will be a great assistance for the sports sector in fighting the brunt of Covid-19.
Attracting the sponsors to various events is essential for success of any major event. Taking into consideration the circumstances inflicted by the pandemic, support has to be given to the sports sector in the form of legislation. The sponsors, team owners, managers, athletes and staffs are all affected by the situation created by the pandemic. Moreover, other sectors associated with a major event like the building sector, tourism, local businesses etc. are also benefitted from such management. Thus, with single event management legislation, many sectors of the economy can be saved from the negative effects of the pandemic.
Therefore considering the existing system for the protection of intellectual properties, India does not have any legislation in place. The number of major events that has happened in India is actually less compared to countries like New Zealand. However, instances of ambush marketing have been reported in India as well. After the Arvee enterprises case, even though there are lesser cases of ambush marketing, it is really a shame for the IP regime in India to allow such infringements of IP rights. The act of ‘JIO’ in 2017 IPL is an example of what companies can do if there is a lack in proper legislation. The persons whose rights got infringed should be encouraged to sue against the ambushers. The Indian Judiciary has approached ambush marketing in different ways. But the practice was never identified to be of importance by the Courts. The Courts have given protection when the logo or slogans of the event is used. Even though direct forms of ambush marketing are given protection by the judiciary, they are yet to identify and protect indirect ways of creating association with the event. The decision of Delhi High Court in 2010 is an example of this were an ex-parte ad interim injunction making the defendants liable for infringing the rights of the plaintiff by using the Common Wealth Games logo and the website deceptively similar to that of the plaintiff was granted. This has made it a necessity to address this type of ambush marketing techniques and protect the rights of event sponsors. Since such acts can affect proper management of major events, it is important that these events have to be regulated and protected against these activities.
Until and unless the practice is legally stopped by the judiciary or the legislature, the ambushers will extend the scope of ambush marketing by adopting new methods and modes of ambush marketing. This makes the need for legislation against ambush marketing necessary. This will in turn help India in economic development through sports tourism and international acceptance.
The legislature’s approach can also impact the tourism sector positively. Tourism is an important sector to concentrate on by the government especially during and after the pandemic. Tourism sector have to be revived from the losses that the pandemic can potentially inflict upon it. The sports sector is also severely hit by the pandemic. Famous sports clubs are even offloading players to maintain their revenue. Thus, it is hard for the sports sector also during this pandemic. In order to salvage the sports sector and others from this ordeal it is therefore important to manage all major events happening in the country. Only such changes in the existing law can make different companies invest in the sports events happening in the country. All the sports and games sectors of the world are hit by the pandemic. This has boosted the need for legislation for proper management of various events happening in the country.
Looking up to countries like New Zealand and studying their strategy is important in making laws in this context. . The approach of different countries towards these issues and the legislative protection given by them are important in giving them opportunity to host more major events. Thus, India has to learn from these approaches and give protection against the infringement of rights of event sponsors by their competitors.
 LL.M, Christ University, Bengaluru
 BBA LL.B, Christ University, Bengaluru
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