Major sporting events generate numerous marketing and promotional campaigns – both official and unofficial.
Although such marketing and promotional campaigns linked to a large-scale event can be extremely lucrative, these activities are always tightly regulated and scrutinised, not least to protect those official sponsors and their investments, but also other things such as intellectual property rights and society.
The FIFA World Cup Qatar 2022 starts on 20 November and given the spotlight on the high-profile tournament, with much of the world watching (over 3 billion people are estimated to tune in globally via their in-home television), this can provide ample opportunities for third parties to put out an ambush marketing campaign, and we have already seen some blatant examples of this.
What is Ambush Marketing?
Ambush marketing can be very difficult to define, with everyone having their own views as to whether an activity is commercially acceptable or not. In the majority of cases there is a very fine line between a cleverly worded or put together advert and infringement.
Ambush marketing is generally an attempt, directly or indirectly, by a third party (who are not officially or formally connected with the high-profile event) to associate themselves with the tournament in order to benefit from the goodwill or prestige of the event. This is known as ambush by association (another form of ambush marketing not dealt with in this article is “ambush by intrusion” – e.g. by placing adverts in the event advertising space (e.g. a billboard near the venue(s))).
Ambush by association is a form of coat-tail marketing which means that the third party organisation would be able to gain exposure without having to pay for that privilege or jump through those hoops that an official sponsor would do. This can cause detriment to those that have such official agreements in place and lessen the sponsorship value for such packages.
The most blatant examples of ambush marketing may involve an infringement of intellectual property rights (trade marks, copyright, design rights, passing off or unfair competition), for example through the use of the official name of the event, logo, mascots or slogans, posters or designs or a breach of advertising regulations.
In the context of the FIFA World Cup Qatar 2022, we have, over the past week seen a couple of examples which could fall foul and therefore be classed as an ambush marketing attempt:
- BrewDog has recently proclaimed itself on a series of billboards and online posts to be the “Proud Anti-Sponsor of the World F*Cup” (the advertising campaign can be viewed here).
FIFA have a large number of trade mark registrations across the world including for marks such as WORLD CUP, FIFA and QATAR 2022. The trade mark “FIFA” has, probably carefully and purposely, not been used in the advert which may avert some intellectual property infringement concerns. However, reference is clearly made to the World Cup, Qatar and Football in the adverts and in their online PR. FIFA’s Intellectual Property Brand Guidelines (which can be accessed here) indicate that QATAR 2022 and the WORLD CUP marks are considered to be protected assets of FIFA and therefore there could be cause for complaint in relation to such use of FIFA’s intellectual property assets in the BrewDog campaign.
BrewDog might argue that their adverts are not associating themselves with the World Cup, but rather the opposite. The adverts are made up to look like they were sponsored adverts (saying in one font “SPONSOR OF THE WORLD CUP”) which have been graffitied with the words “ANTI” and “F*” to read “ANTI-SPONSOR OF THE WORLD F*CUP”. However, in doing so the marketing is still opportunistically referencing the event. In addition, the messaging in the advert and PR is derogatory towards the World Cup. As such the adverts may be considered to be taking unfair advantage or be detrimental to the reputation of the marks – which is another form of trade mark infringement. In addition, although on the face of it they are disassociating themselves, BrewDog are still using the event and marks to benefit from the political spotlight on the tournament. Such exploitation is likely to have an impact on the rights owners, official sponsors, investors as well as fans and consumers. The advert has not been without criticism, as some have accused BrewDog of hypocrisy due to accusations relating to its own corporate culture and working conditions and the fact that its distributors sell into Qatar and they will be showing the World Cup in special Brewdog fanzone viewing areas in their bars.
- Aldi also released one of their Christmas adverts (which have an overarching Home Alone Theme – which may or may not also be licensed), entitled “Feast of Football” (which can be viewed here). In the advert there are numerous references to various footballers and a “football tournament” and “cup”, although they do not make any reference to FIFA, QATAR or the WORLD CUP expressly and Aldi have used puns for all the names of the footballers. Aldi are no stranger to the legal constraints in place when it comes to ambush marketing; however the advertisement appears to be much lower risk (by comparison to BrewDog) in terms of crossing the ambush marketing line.
What do Companies need to consider to avoid falling foul?
Ambush marketing can give the rights owner grounds to sue the advertiser if they fall on the wrong side of the line. This could be extremely costly for the advertiser and counterproductive given they may have been seeking to avoid the costs of being an official sponsor of the event.
Sanctions for ambush marketers could include (depending on what rights, regulations or laws are being relied on) being sued or prosecuted and having injunctions, monetary fines or compensation ordered, and it could lead to negative publicity. Such negative publicity can arise from, for example, the advert being reported by the media, through the power of social media and public opinion or they could be caught by the ASA’s Advertising Regulations and, if complaint is made, they could find themselves on the ASA’s rulings page.
Ambush marketers need to therefore be aware of the following legal and regulatory constraints before planning an ambush marketing campaign:
- Any relevant guidelines (such as FIFA’s brand protection guidelines), regulations (including the Advertising Standard Authority: The UK Code of Non-broadcast Adverting and Direct & Promotional Marketing (CAP Code) and The UK Code of Broadcast Advertising (BCAP Code)) or laws created as a result of the tournament (for example, in relation to the Birmingham Commonwealth Games the Birmingham 2022 Commonwealth Games Act was passed). For large events, such as the World Cup and Olympics, specific temporary legislation is usually put in place by the host country;
- Do not suggest an association or promote any affiliation/official relationship with the tournament such as by using terminology such as “Sponsor” or “Partner” unless the relevant permissions, consent or contractual arrangements are in place for you to do so. Such suggestion could also cause the ambush marketer to fall foul of the CAP Code, such as if an ambush marketer suggests an official affiliation with the tournament, then rule 3.1 CAP Code in relation to any non-broadcast advertisements could be considered applicable “marketing communications must not materially mislead or be likely to do so” and therefore the relevant advertiser would be in breach of the CAP Code.
- Beware of using any third party intellectual property rights without the right holder’s permission such as trade marks, logos, slogans or branding of events, or anything that might be confusingly similar to these.
- Avoid imagery or names or other material that could directly or indirectly imply or suggest a particular event.
Despite the risks associated with putting out an ambush marketing campaign or promotion, it is a global phenomenon, and it seems clear that the upcoming FIFA World Cup Qatar 2022 will be fertile ground for ambush marketers. It will be interesting to see how many more examples of this we see over the coming weeks and throughout the tournament.
If you would like to discuss any concerns about any marketing campaigns or promotions, please contact a member of our IP, Sports or Retail teams.
