Articles

Protect your event

Strategic Marketing July 2009
By Ian Jacobsberg

The upcoming soccer World Cup is bringing the thorny issue of ambush marketing into sharper focus than ever before.

International events like the World Cup present marketers with an unparallel promotional opportunity. However, there are also other, non-sporting, activities which attract marketing investment. These include theatrical and musical performances, trade fairs and even business conferences.

The more exposure an event brings, the more likely it is that other parties, who have not made the financial investment required to become an official sponsor, may attempt to capitalise on the publicity generated by the event in order to sell their products. This type of ‘free-loading’ is colloquially known as ‘ambush marketing’.

There are two main types of ambush marketing: ‘associative’ and ‘intrusive’. The former occurs where an advertiser attempts to mislead the public into thinking that he is an authorised event sponsor. This may involve using the names and symbols of the event in his advertising.

‘Intrusive’ ambush marketing occurs where the seller attempts to give his own brand or product exposure via the publicity attracted by the event, but without the authority of the event organiser.

In both cases the marketer is attempting to use the event as a platform to promote his brand or product, but without making the financial investment and meeting the other obligations undertaken by a sponsor.

Host’s obligations
In a major intentional event, such as the Olympic Games or a World Cup, the awarding of the event to a host country is generally conditional on the relevant government entering into a contract with the sport’s international governing body. This contract obliges the host nation to ensure that the rights of the official sponsors are protected.

In relation to the 2010 FIFA World Cup, for example, the South African government has passed two ‘World Cup Special Measures Acts’, allowing it to be declared a ‘protected event’. The Act stipulates that no person may: “Use a trade mark in relation to such event in a manner which is calculated to achieve publicity for that trade mark and thereby to derive special promotional benefit from the event, without the prior authority of the organiser of such event”. Therefore, unless a marketer has the permission of the event organiser to do so, he cannot publish any marketing material that carries his brand in such a way as to suggest a connection with the event.

But what of lower profile events; those that are not of sufficient strategic importance to merit specific government protection? How do the organisers and the sponsors of those events protect themselves against ambush marketing?

Trade Practices Act
One way is by reliance on the provision of the Trade Practices Act, 1976, S9(d) of which reads: "No person shall … in connection with a sponsored event, make, publish or display any false or misleading statement, communication or advertisement which represents, implies or suggests a contractual or other connection or association between that person and the event, or the person sponsoring the event, or cause such statement, communication or advertisement to be made, published or displayed".

Effectively, this means that any use of the name of the event, or imagery associated with it, in relation to advertising published by a non-sponsor would constitute an offence in terms of the Act. Not only would the offender be exposed to a civil action, which could result in an interdict or an award of damages in favour of the official sponsor, but he would also be potentially liable to a fine or imprisonment.

In addition to the Trade Practices Act, event organisers and official sponsors may also rely on the provisions of section 34 of the Trade Marks Act, which provides as follows:

"The rights acquired by registration of a trade mark shall be infringed by –

(a) the unauthorised use in the course of trade in relation to goods or services in respect of which the trade mark is registered, of an identical mark or of a mark resembling it as to be likely to deceive or cause confusion;
 
(b) the unauthorised use of a mark which is identical or similar to the trade mark registered, in the course of trade in relation to goods or services which are so similar to the goods or services in respect of which the trade mark is registered, that in such use there exists the likelihood of deception or confusion; …"

Trade Marks Act
To be able to rely on the protection afforded by the Trade Marks Act, the event organiser must register as trade marks any names or images that may be associated with the event. This will then allow the organiser to control exactly how, and by whom, those names and images may be used. For example, in respect of the 2010 World Cup, FIFA has registered almost every imaginable permutation of names, words and images that advertisers might wish to use to capitalise on the goodwill of the tournament, or suggest that they are connected with it.

These include:

• The Official Mascot;
• The Official Emblem;
• The Official Poster;
• ‘2010 FIFA World Cup South Africa’;
• ‘World Cup 2010’;
• ‘RSA 2010’;
• ‘Football World Cup’;
• ‘FIFA World Cup’;
• ‘South Africa 2010’;
• ‘SA 2010/ ZA 2010’;
• ‘2010 FIFA World Cup’;
• ‘Soccer World Cup’;
• ‘World Cup’;
• ‘South Africa World Cup’;
• The names of all South African venue cities with the figure ‘2010’ behind them;
• ‘Twenty Ten / 2010’;
• ‘World Cup South Africa’
• And "any similar derivatives and/or combinations of any of the above marks".

By registering this wide range of names and images, FIFA can prevent any unauthorised individual or organisation from using any of them to promote a product or service.

Sponsorship agreement
From a sponsor's point of view, the rights that are being paid for must be entrenched in a proper sponsorship agreement. The agreement should, for example, oblige the event organiser not to appoint any of the sponsor's competitors as sponsors - or at least clearly delineate the areas in which each of them will enjoy exclusivity. For example, one may be the exclusive programme sponsor, while another may have exclusivity in respect of clothing worn by the organiser's employees at the event.

In addition, the sponsor should ensure that the organiser commits to taking active steps to prevent ambush marketing, and does not simply turn a blind eye once the sponsor has paid his money.

There are, no doubt, many who will criticise what they see as a monopolistic and dictatorial approach on the part of FIFA and other event organisers, who try to obtain wide-ranging protection for the goodwill of the event, but who may then even applaud the ‘ingenuity’ of clever ambush marketing.

On the other hand, the interests of sponsors and event organisers must also be considered. Not all event organisers are international bodies and not all sponsors are multinational corporations. Many events could not take place without the support of sponsors. They, in turn, are entitled to expect that the rights they have paid for are protected and that they will see a return on those investments. This is only possible if the rights of both sponsors and event organisers are properly protected.

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Ian Jacobsberg

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011 523 6091
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