AmbUSH mArKetInG
Amidst the various controversies that the Indian protected IP, such as logos, graphics, characters Some go further and see ambush marketing as
Premier League (IPL) faced in India, one less in the advertising and marketing, and these a clear violation of the IP rights associated with
obvious problem was that of ambush marketing. are used without the permission of the rightful an event. This is because any direct or indirect
owner. Such examples can be dealt with under reference to the event attempts to capitalise
Ambush marketing is where companies not
the provisions of IP law, as was evident in the on the good will earned by the organisers and
officially associated with an event ride on its
Canadian case of Arsenal v. Reed. sponsors, and could ultimately result in a loss of
popularity in an attempt to benefit from the
exclusivity of rights and income. Thus, they claim
publicity surrounding it. In essence, they try to However, ambush marketing ‘by intrusion’ is a
that ambush marketing does constitute passing-
hijack the public’s attention towards themselves subtler practice (like the Pepsi campaign above),
off and should be brought under the legal ambit.
and away from the sponsor. which cannot be categorised as illegal but serves to
promote a connection in the minds of consumers
However, a study of cases brought under passing-
PepsiCo’s ‘Youngistaan’ ambassadors—Virender
between advertisers and the event. This can be
off laws due to ambush marketing would reveal
Sehwag and Ishant Sharma—attended
done on-site or via media—by sponsoring the
that the courts tend to minutely examine every
promotional activities for Coca-Cola India—the
broadcast of individual teams, venues or athletes
such requisite and still find the same lacking.
associate sponsor and official pouring partner
instead of the event; purchasing advertising
It was observed in the landmark case of NHL
for respective IPL teams. This created a furore
time; offering corporate hospitality; publishing
Canada v. Pepsi that “nowadays, perhaps the more
among the rivals. Furthermore, according to
innovative taglines; disparaging competitors;
common type of passing-off, is where it is alleged
Lalit Modi, chairman of the IPL, there seems
giving away free tickets as prizes; erecting
that a defendant has promoted his product or
to be an assumption among some third parties
billboards; flying banners overhead; or handing
business in some way approved, authorised or
that BCCI-IPL’s proprietary names, marks and
out free merchandise at or near the event.
endorsed by the plaintiff or that there is some
contents can be used for various commercial
business connection between the defendant and
purposes without permission.
Recently, Hugo Boss, though not an official
the plaintiff. By these means, a defendant may
sponsor, parked its sailboat, with a huge ‘BOSS’
hope to cash in on the goodwill of the plaintiff.”
Although first seen at the 1984 Olympics, where
on its sails, so that it was always in the camera’s
Fujifilm was the official sponsor but Kodak
view during a British Open Golf Tournament. It
However, the court ruled against the NHL, stating
sponsored the TV broadcasts and the US track
garnered immense publicity among viewers as
that not every kind of connection amounts to
team, the term ‘ambush marketing’ was coined in
a result. However, there was no legal recourse
a passing-off. The court was of the opinion that
the early 1990s by Jerry Welsh, president of Welsh
as it was clear that the act did not involve
although the impugned advertisements might
Marketing Associates. Originally, the phrase had
counterfeiting or the illegal use of trademarks,
constitute ambush marketing, they in no way
positive connotations and referred to healthy
names or symbols. Ambush marketing is just a
suggested that the plaintiffs approved, authorised
competition. But the term has acquired negative
sponsorship practice and has no identity per se
or endorsed the contest in any way or that there
connotations and now refers to something akin
in the legal spectrum, as no specific law or statute
was some business connection between the
to commercial theft.
explicitly addresses the practice.
plaintiffs and the defendants. Thus Pepsi’s goods
or services in this case were not sufficiently tied
Spoor & Fisher defines Ambush Marketing as
Grant of protection under ‘likelihood of with the claimant to constitute passing-off.
taking place when a trader seeks to utilise the
confusion’ is given when the feature used has
publicity value of an event, for instance a major
acquired a reputation and members of the public
A similar argument in the cases of ICC v.
sports tournament or a concert, to gain a benefit
Britannia and ICC v. Arvee, in India, was
shall infer it to be from the same or connected
from it, despite not having any involvement or
that: “The phrase ambush marketing is used
source. Consideration is given to similarity
connection with that event and, in particular,
by marketing executives only. It is different
between the rival marks and the products or
having made no financial contribution to entitle it
from passing off. In the passing off action,
services. In most cases, the products or services
to derive benefit from the event. Although mostly
there is an overt or covert deceit whereas the
for which the trademark of the event organiser
associated with sports events, any event can
ambush marketing is opportunistic commercial
is registered are unlikely to be similar to those
come under attack from ambush marketing—for
exploitation of an event.” The Delhi High Court
of the ambusher. As a result, the courts would
example, L’Oréal hair colour ads appearing during
rejected the request for an injunction stating that
usually find no likelihood of confusion. Relief
the Lakme India Fashion Week broadcasts.
prima facie the basic ingredients of passing-off
could only possibly be obtained if the organising
were not fulfilled.
India awoke to ambush marketing during the committee seeks protection of all its marks,
1996 Cricket World Cup. Although Coca-Cola symbols, devices, etc. under all classes or under The exceptional willingness of the courts to
was the official sponsor of the event, Pepsi flagrant trademark infringement by the dilution protect sponsorship and licensing contracts
grabbed the attention of consumers instantly and caused to well-known marks of well-known despite there being no actual consumer
more effectively with its ‘Nothing official about entities. confusion was highlighted only in the US case of
it’ tagline. Legally, there was nothing Coca-Cola MasterCard v. Sprint.
Ambush marketing is primarily judged on the
could do to stop the campaign as it clearly stated
principles of passing-off, which were enshrined
that Pepsi was not the official sponsor. Yet the
Today, ambush marketing is a popular term to
in the case of Warnick v. Townend. They were
players endorsed Pepsi over Coke.
explain ‘piggybacking’ on an existing occurrence.
defined there as a misrepresentation made by Underhand tactics, such as Kingfisher’s billboard
Ambush marketing ‘by association’, wherein the a trader to its prospective customers that is stating “and we changed them, fly the best”, in
ambusher represents to the public that it is an calculated to injure, as a reasonably foreseeable response to Jet Airways’ billboard “we have changed”,
authorised sponsor of an event, could lead to the consequence, the business or goodwill of another, or a recent advertisement of Nestle’s Munch Bunch
infringement of IP rights. This is certainly the and that actually or probably causes damages to hijacking the Cadbury Dairy Milk tagline, have also
case where there is also direct adoption of the the business or goodwill of the other trader. been considered as ambush marketing tactics.
www.worldipreview.com World Intellectual property review September/October 2009 35
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