AMBUSH MARKETING
could be associated with the event. However, even event organisers agree that the extent of their rights cannot encompass all kinds of associations with the World Cup, since it also is considered to be a major cultural and social event. As such, merchandising items with general football terms or Brazil-related terms or even national colours do not necessarily represent an infringement.
Nevertheless, in view of this scenario, some of the World Cup Law’s provisions are now being contested, since the scope of
its protection
established very strict rules to safeguard the event organisers’ rights, which could bar non-sponsors to freely compete in the market during the event.
When weighing event organisers’ and sponsors’ rights, as assured by the World Cup Law, with the fundamental principles of the Brazilian Federal Constitution such as free enterprise and free competition, it is possible to find spaces in which marketers may be allowed to operate without their campaigns representing a violation of rights. In this sense, unless marketers reproduce official symbols, trademarks, words, imagery, references or any other elements that undoubtedly create a link with the World Cup, an association by means of generic and common terms would theoretically be allowed, since these are non-proprietary and belong to the public domain. In any event, a case- by-case analysis will be required.
Regarding this issue, it is interesting to note an existing duality concerning the protection assured by the World Cup Law,
competition law. As mentioned,
• Article 33: Exposing trademarks, businesses, establishments, products, services or promotional activities, not authorized by FIFA or a person indicated by the same, attracting in any way public attention to the occurrence of local events, aiming to obtain economic or advertising benefit. Penalty: detention from three months to one year or a fine.
In short, the law tends to prohibit any form of association, either directly or indirectly, with the World Cup and its official symbols.
Also, the following requirements were established in order for an unlawful ambush marketing practice to be recognised: (i) lack of consent or authorisation from the organisers; (ii) attempt to obtain undue economic or marketing advantage; and (iii) diverting consumers’ attention inducing them to believe that the trademark, business, product or service is in any way connected with the event.
It is noticeable that the World Cup Law has created an exceptionally large scope of protection against any unauthorised use of terms and elements that
www.worldipreview.com
especially regarding anti-ambush
marketing provisions are based on unfair competition, as it is considered that non-sponsors would be taking advantage of the investments and efforts made by another person in order to gain financial, commercial or marketing benefit. However,
if the protection against ambush
marketing is proved to be abusive, it will represent an act against fair competition itself.
Accordingly, by preventing other parties
from practising legitimate rights, such as the right to free enterprise and free competition, event organisers and official sponsors can be made liable for infringement of the economic order, when the market economy’s structure is affected. Tat is to say that stringent ambush marketing rules may, if applied unreasonably, jeopardise free competition, granting event organisers the means to create a monopoly. Accordingly, while on one hand violation provoked by non-sponsors represents an act of unfair competition, on the other the abuse of these new laws and the right they create will infringe fundamental rights on which the economic order is based.
Robert Daniel-Shores graduated from the Law School of the Catholic University of Rio de Janeiro with a Bachelor of Law degree with an emphasis on business law; he subsequently passed the bar exam. He has specialised in matters related to sports law, World Cup law, Olympic law and entertainment law in general. He has been working with Daniel Advogados for more than three years and represents the fourth generation of the Daniel family at the office, which was co-founded by Percy Daniel and Denis Allan Daniel, his great-grandfather and grandfather respectively, in 1959.
It is important to stress that event organisers and sponsors have legitimate rights to protect their investments against third parties that wish to take advantage of the event’s goodwill without having submitted any form of contribution. However, considering that the World Cup is also a major cultural and social event, which justifies the massive public investment from the government, third party rights must be equally respected. Abusive anti-ambush marketing rules may negatively affect the market and not only damage non-sponsors, but the consumer public, who has the right to enjoy the conditions of a fair market.
Te ambiguity concerning ambush marketing has yet to be analysed by Brazilian courts, and little discussion or study to this effect has been seen. Te fact is that it is still necessary to see how this plays out in Brazil. However, with massive sporting events coming to Brazil in the next few years, and considering that huge opportunities will be available, expectations are incredibly high and players should start to warm up before playing in the game.
Robert Daniel-Shores is a lawyer at Daniel Advogados. He can be contacted at:
robert.daniel-shores@daniel.adv.br
World Intellectual Property Review September/October 2013
93
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119 |
Page 120 |
Page 121 |
Page 122 |
Page 123 |
Page 124 |
Page 125 |
Page 126 |
Page 127 |
Page 128 |
Page 129 |
Page 130 |
Page 131 |
Page 132 |
Page 133 |
Page 134 |
Page 135 |
Page 136 |
Page 137 |
Page 138 |
Page 139 |
Page 140 |
Page 141 |
Page 142 |
Page 143 |
Page 144 |
Page 145 |
Page 146 |
Page 147 |
Page 148 |
Page 149 |
Page 150 |
Page 151 |
Page 152 |
Page 153 |
Page 154 |
Page 155 |
Page 156 |
Page 157 |
Page 158 |
Page 159 |
Page 160 |
Page 161 |
Page 162 |
Page 163 |
Page 164 |
Page 165 |
Page 166 |
Page 167 |
Page 168 |
Page 169 |
Page 170 |
Page 171 |
Page 172 |
Page 173 |
Page 174 |
Page 175 |
Page 176 |
Page 177 |
Page 178 |
Page 179 |
Page 180 |
Page 181 |
Page 182 |
Page 183 |
Page 184 |
Page 185 |
Page 186 |
Page 187 |
Page 188 |
Page 189 |
Page 190 |
Page 191 |
Page 192 |
Page 193 |
Page 194 |
Page 195 |
Page 196