AMBUSH MARKETING
commercial purposes in the absence of express prior approval by the COB or the International Olympic Committee (IOC).
Examples of Olympic terms, for such purposes, include ‘Olympic Games’, ‘Olympic Games Rio 2016’, ‘Rio 2016’, ‘Rio Olympics’, and ‘Rio Olympics 2016’. Although the Olympic Act, in general terms, provides solid safeguards for the trademark entitlements of the IOC and the COB, it makes only limited provision to combat ambush marketing. Tis is due to the fact that— like the Nairobi Treaty and the Lei Pelé—it only takes into account situations in which an event- related sign is being used.
Brazilian trademark law establishes broad protection for the organisers of major events. In practice, however, ambush marketers generally do not rely on an event’s protected sign in order to create an association in the public’s mind between the major event and a given product or service, or the company itself. Rather, they attempt to do so through associative advertising measures, without infringing on the protected sign per se. Trademark law cannot usually be applied to such practices.
So far as the World Cup Brazil 2014 is concerned, Draſt Law PL 394/09 contains draſt statutory provisions which are highly relevant. Te draſt law provides specific and wide-ranging protection for FIFA in relation to signs referring to the event. In addition to the exclusive right of use of its registered event marks, FIFA will be granted the exclusive right to the commercial use of terms such as ‘Football World Cup’, ‘World Cup’, and ‘World Cup 2014’ for the period commencing with the date of entry into force of the law until the 30th day aſter the conclusion of the World Cup.
PL 394/09 grants FIFA exclusive rights of use for all signs listed in the statutory provisions, independently of their registration with the Brazilian Trademark and Patent Office. Furthermore, the draſt law prohibits any unauthorised commercial association between goods, services and trademarks on the one hand and signs listed in PL 394/09 on the other (subject to certain specifically designated exceptions).
A truly innovative element of PL 394/09 is the introduction of the so-called ‘advertising- free zone’, which would appear to be, potentially at least, a powerful weapon against ambush marketing actions in the immediate surroundings of event locations. No such provision was included in the Olympic Act. It remains to be seen, however, to what degree the event organiser or FIFA can effectively prevent
“ALTHOUGH THE OLYMPIC ACT, IN GENERAL TERMS, PROVIDES SOLID SAFEGUARDS FOR THE TRADEMARK ENTITLEMENTS OF THE IOC AND THE COB, IT MAKES ONLY LIMITED PROVISION TO COMBAT AMBUSH MARKETING.”
advertising actions which occur on private premises within these zones. Another relevant issue is that PL 394/09 makes no provision for cases where association with the major event is achieved without reference to a protected sign, or where the acts of association take place outside the ‘advertising-free zone’.
PL 394/09 fails to provide comprehensive protection against ambush marketing measures (as does the Olympic Act), since it does not apply to actions beyond the periphery of the stadiums, or to those that make reference to the event without directly encroaching on a protected sign. As stated earlier, most ambush marketing actions do not in fact make any use of signs which the event organisers can claim are protected.
Brazilian law also entitles an organiser to defend itself against ambush marketing by relying on the regulations for protection against unfair competition. Of particular significance in this regard is the statutory provision which stipulates that whoever uses fraudulent means to divert (‘poach’) a third party’s clientele, for his own benefit or for the benefit of someone else, commits an act of unfair competition. Despite the broad reach of this provision, it remains unclear precisely to which actions it applies. Can it, for example, be applied to the mere distribution of fan merchandise featuring the mark of an ambusher? Whether deceitful means are used in such a case is arguable, and if such means were employed, can it be said that the direct purpose was to attract the customers of another company?
Te legal remedies available to combat unfair competition—such as those found in trademark law—do not provide a sufficient legal basis for effective action against ambush marketing.
44 World Intellectual Property Review May/June 2012
As an alternative, an event organiser can resort to copyright law. Te precondition, though, is that the emblems, logos, or mascots of an event, in order to qualify for protection, must be original works within the terms of the law. To the extent that the works are protected, the organiser can proceed against their unauthorised usage. In reality, however, given that most ambush marketing measures do not associate themselves with the event via protected signs, copyright law provisions offer only limited protection.
In the event of infringement of trademark or copyright or an act of unfair competition, it is open to the organiser, at any time, to claim injunctive relief and compensation for damage suffered.
Brazilian law also enables an event organiser to rely on property (land) law in proceedings against ambush marketing at the event location. Te relevant rights may be reinforced by specific contractual agreements and by the terms and conditions of admission tickets. Tis possibility of defence is, however, of only limited use, since, in practice, most forms of ambush marketing will not fall within the scope of the applicable legal provisions (set out in the Civil Code). In any event, the provisions offer no greater protection than can be obtained under trademark, unfair competition, and copyright law.
In light of the aspects referred to above, it can be concluded that the actual legal scenario in Brazil does not provide comprehensive protection for event organisers against ambush marketing. Te rules on trademark protection are an insufficient means for fighting against undesired advertising actions, as said rules cover only those cases in which a protected sign is used to create an association with a major event. Tis does not generally occur during ambush actions.
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