COMBATTING AMBUSH MARKETING IN THE UNITED KINGDOM

‘Ambush Marketing’ Generally

‘Ambush marketing’ involves companies, using a variety of methods of directly and indirectly associating themselves, their products and services with major sporting events without being official sponsors of them, with a view to gaining publicity and commercial advantages, and without, in fact, paying any sponsorship fees.

‘Ambush marketing’ can include ‘direct ambush marketing’. For example, where companies promote themselves, for example, as the „official suppliers“ of team or athletes participating in sporting events, even where not official sponsors of the events.

Also ‘indirect ambush marketing’, where companies associate themselves with sports events without explicitly claiming sponsorships. For example, companies, who are not official sponsors, distribute gratis their branded products to fans attending sporting events.

In the United Kingdom (UK), there is no specific law outlawing ‘ambush marketing’ as such and, therefore, sports events organisers, sponsors and others, affected by various kinds of unfair marketing practices, must rely upon a combination of legal measures to protect themselves.

These measures include:

• trademarks and copyright;
• specific sporting events-related legislation; and
• advertising codes;
• as well as legal actions under the Common Law Doctrine of ‘passing off’ – a form of unfair competition in a business/commercial sense – to combat unauthorised associations with major sporting events.

Trademarks and Copyright

Sports events organisers can use their intellectual property rights in sports events logos and names, to prevent unauthorised use by third parties. For example, the Football Association (FA), the governing body of association football in England, has registered its flag-ship event, the ‘FA Cup’, and FIFA, the world governing body of association football, has registered its ‘FIFA World Cup’ as trademarks in the UK.

Event-Specific Legislation

Some major sporting events, like the Olympic Games, have specific legislation to prevent ‘ambush marketing’, such as the London Olympic Games and Paralympic Games Act of 2006, which provided the legal framework for the staging of the 2012 London Olympics.

Advertising Standards 

The Advertising Standards Authority (ASA), under its Code of |Advertising Practice, which requires that advertisements must be “legal, decent, honest and truthful”, can intervene in cases where marketing campaigns, including those relating to UK sporting events, are considered to be misleading or create a false association with such events.

However, for example, the ASA dismissed a claim for misleading advertising when a well-known beer brand invited consumers to “Support English Rugby”, as the advertising concerned was not misleading, because it was clear who were the official sponsors and the advertising did not, therefore, imply any official sponsorship relationship with the English Rugby Team.

For breaches of the Code, the ASA may impose sanctions, which include fines and ‘naming and shaming’ of offenders.

‘Passing Off’

This legal action allows sports events organisers to sue for misrepresentation if companies’ marketing campaigns lead consumers to believe that there is an official association with the sports events concerned when none exists.

To succeed in a ‘Passing Off’ action related to sporting events, the organisers must prove:

• goodwill;
• misrepresentation; and
• damages.

Legal Consequences of ‘ambush marketing’

In the UK, ‘ambush marketing’ cases can result in legal proceedings. These include Court injunctions to stop the ‘ambush marketing’; and claims for damages, which, depending upon the circumstances of each particular case, can be substantial.

We advise on all aspects of ‘ambush marketing’ in the United Kingdom, and further information is available from the Head of our United Kingdom Desk, Prof Dr Ian Blackshaw, by emailing him at blackshaw@valloni.ch.