AMBUSH MARKETING
Major sporting events have attracted increasing economic and social attention over recent decades. Companies have recognised that sponsoring major sporting events offers a lucrative and fruitful platform for communication. Tis, in turn, has led to a considerable increase in the number of companies lending their support to such events. In general terms, their goal is to transfer some of the attention paid to a major event, and the prestige attached to it, to their own goods and/or services or to their company generally.
Event organisers are, naturally, keen to safeguard their own interests and the financial interests of the sponsors (particularly in view of the significant expense incurred by the latter in acquiring exclusive rights of association with the events). On the other hand, there are many companies intent on deriving economic profit from major events without entering into a sponsorship agreement.
Tis is the area in which ‘ambush marketing’ thrives. Te term encompasses the actions of non-sponsors aimed at establishing in the public mind an association with a major event and its organiser, with the goal of transferring some of the attention and the prestige attached to the event to their own goods and/or services or company, thereby profiting without offering anything in return. Ambush marketing is increasingly common at major events with strong public appeal.
Te phenomenon of ambush marketing is frequently associated with major sporting events, but is not, in fact, limited to sport. It extends to all major events which attract strong media and public interest, including major cultural and even religious events which are supported by sponsors. An ambusher can make use of a broad range of advertising measures (which may be collectively described as ambush marketing actions), ranging from the non-authorised use of a trademark to ‘creative’ advertising techniques which suggest an association with the event without encroaching on protected rights. Te history of ambush marketing practices demonstrates that the most prevalent actions fall into the latter category.
Te selection of Brazil as the host nation for the Football World Cup in 2014 and Rio de Janeiro as the host city for the summer Olympic Games in 2016 has increased the significance of the problem for the country. Despite its increasing importance, however, the practice of ambush marketing is rarely addressed in detail in the Brazilian legal literature: in fact, Brazilian courts have yet to make any ruling specifically referring
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to the phenomenon. As the dates of these two major sporting events approach, the need for specific means of legal protection for the organisers and sponsors of major sporting events is ever more pressing.
Of significance in this regard are the provisions of trademark and unfair competition law, which are collectively set out in the Brazilian Industrial Property Law. In relation to trademark protection, the owners of event-related trademarks such as FIFA (the international football federation) and the COB (Brazilian Olympic Committee) acquire, with the registration of a mark, an established right to exclusive use of the respective sign throughout Brazilian territory. Te registration therefore includes the right to prevent third parties from using identical, or similar, trademarks for identical, or similar, goods or services.
Accordingly, the event organiser, as the owner of trademarks, is entitled to prohibit other companies from using specifically protected terms, or similar terms that might be mistaken for the protected terms when applied to similar goods or services. It is important to note that certain types of usage, such as mentioning the trademark or the name of the event in speeches, scientific or literature works or other publications, are exempt from a challenge based on trademark law, provided the usage is not employed for commercial purposes.
Te Law of Industrial Property also lists a number of signs that may not be registered as trademarks in the absence of the express consent of the event organiser. Examples are the name, prize/award and logo (or imitation thereof) of an official sporting event. Te law also prohibits the partial or complete reproduction, or imitation, of a third party’s registered trademark, to distinguish identical, or similar, products or services, when such use is liable to cause confusion.
Te protection afforded the organiser of a major event covers both unauthorised use of event- related trademarks within Brazilian territory and attempts to register expressions identical or similar to the event-related trademarks and symbols (or to the event itself) for similar, or identical, products or services.
So far as the Olympic Games are concerned, the protection of Olympic symbols and Olympic terms is also provided for in the Nairobi Treaty and the Brazilian ‘Pelé’ Law (Lei Pelé). In terms of the forthcoming 2016 Rio games, Te Olympic Act (Lei do Ato Olímpico) sets out a list of symbols associated with the games, and prohibits third parties from using any such symbols for
World Intellectual Property Review May/June 2012 43
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