Ambush Activism Trends in Ambush Marketing
04 April 2023
04 April 2023
Major events, such as the World Cup in Qatar, attract significant worldwide attention and provide crucial marketing opportunities for advertisers. It also presents a prime target for opportunistic businesses seeking to leverage the profile of the event to promote their brands through ambush marketing tactics.
Traditionally, ambush marketing is a strategy used by advertisers to suggest that they have an affiliation with an event or to share in the publicity surrounding an event, without having any official authorisation. Usually, ambush advertisers seek to benefit from the goodwill associated with an event by promoting a connection between themselves and the event, without paying for any such rights. Ambush marketing is problematic for sponsors because it has the potential to dilute the value of investments made by legitimate sponsorship. Where the official sponsors' rights can be easily encroached upon by ambush marketers, the appeal of an official sponsorship will be tarnished and may lead to difficulties in procuring future sponsorships. This in turn affects event organisers who rely on sponsorship fees to cover and recoup the costs of putting on the event.
There are generally three types of ambush marketing strategies:
Increasingly we have seen the deployment of the distractive strategy in which brands are using negative publicity and criticisms of events like the World Cup in Qatar to raise their brand's public profile and increase their profitability.
Some of the recent trends, and the wide variety of ambush marketing strategies being deployed, are best illustrated by recent interesting examples.
BrewDog is a Scottish brewery and pub chain. In November 2022, BrewDog launched its 'anti-sponsorship' campaign protesting Qatar's human rights record through social media and billboards. It promised to donate all profits from the sale of "Lost Lager" sold during the World Cup to human rights charities. Some of the slogans promoted by the campaign included:
As you may have guessed, BrewDog does not have an official partnership with the World Cup. Their campaign is unique in that it seeks to benefit off the "badwill" associated with the Qatar World Cup and recent public criticisms of the event in order to promote its brand, products and build goodwill.
To avoid legal action for trade mark infringement, BrewDog refrained from referring to 'FIFA' which is protected as a registered trade mark. Further, given the critical nature of the campaign, no reasonable member of the public would be misled to believe that BrewDog is an official sponsor of the World Cup which FIFA would need to demonstrate to establish a cause of action, if the conduct were to take place in Australia. This example shows how opportunistic and well-prepared brands can use ambush marketing to benefit from public interest (positive or negative) in events, seemingly without contravening the law and misleading consumers.
In November 2022, the language learning app Duolingo announced that it was the official sponsor of "the other Qatar", an amateur soccer team based in Rio de Janeiro, Brazil. Under the sponsorship, the Qatar FC players were provided with jerseys featuring the Duolingo logo and "Duo" the owl became the team's official mascot. Duolingo also released a press release which announced the sponsorship while deliberately redacting all references to the 2022 FIFA World Cup in Qatar. The second part of this campaign included the launch of the "Fowl Word Generator" ahead of the World Cup, which allowed soccer fans to generate cheers or insults in other languages.
It's an example of indirect and distractive ambush marketing to leverage off the attention of a major event, without explicitly referring to it or representing that the brand is an official sponsor.
The dispute between the Australian Olympic Committee (AOC) and Telstra in relation to the 2016 Olympic Games is not as recent as the other examples, but illustrates a key issue for sponsorships in the context of marquee sporting events. There is invariably multiple layers of potential sponsorships at the international and local level for such events, including: of the event itself, of official teams participating in it, of individual athletes, and of the local broadcast (which also usually provides access to a large volume of advertising spots in and around the broadcast). If a sponsor does not take up all available sponsorships in its brand category, it leaves open the risk that a competitor may do so and in doing so, will dilute the sponsor's rights. This was precisely the issue in this case. In late 2015, Optus replaced Telstra as the official sponsor of the AOC. However, Telstra retained its sponsorship of Seven's broadcast of the Olympic Games, a sponsorship it had held for many previous Olympic Games and which entitled Telstra to recognition as the official broadcasting partner of Seven for the 2016 Rio Olympics as well as significant advertising spots in and around the broadcast.
Unsurprisingly, Telstra launched a marketing campaign in the lead-up to the 2016 Olympic Games in Rio de Janeiro which showed people watching the Olympics with Peter Allen's song "I Go To Rio" playing in the background of television advertisements and which referred to Telstra's sponsorship of the broadcast.
Telstra's campaigns referred to eligible Telstra customers being given premium access to Seven's "Olympics on 7" app.
The AOC commenced proceedings in the Federal Court alleging that Telstra breached the Olympic Insignia Protection Act 1987 (Cth) and contravened the Australian Consumer Law (ACL) by engaging in misleading or deceptive conduct.
The Court found that Telstra did not use the word 'Olympics' except in composite phrases with 'Seven'. Further, images of the Olympic symbol, flag or emblem, images of Olympic athletes, or images of the Australian Olympic team were not depicted in the advertisements. The Court noted that Telstra was a sponsor of the Seven broadcast and held that its actions were consistent with its status as the official broadcast partner. Consequently, in dismissing the appeal, the Full Court found that Telstra's conduct did not suggest to a reasonable person that it had a sponsorship of the Olympic Games themselves or of the AOC, but rather that Telstra was a sponsor of Network Seven's broadcast of the Olympic Games.
In March 2020, the International Olympic Committee and the Tokyo 2020 Organising Committee announced the postponement of the Tokyo 2020 Olympics to 2021 due to the COVID-19 pandemic. However, the event would still be called the "Tokyo 2020" Olympics.
On the same day, Puma filed an application with the United States Patent and Trademark Office (USPTO) to register "PUMA TOKYO 2021" as a trade mark. Later, Puma also filed applications to register "PUMA BEIJING 2022" and "PUMA PARIS 2024" as trade marks. These applications were rejected by the USPTO due to the likelihood of confusion with the U.S. Olympic and Paralympic Committee's (USOPC) trade marks, including "TOKYO 2020", "BEIJING 2022" and "PARIS 2024".
Subsequently, Puma filed cancellation proceedings with the Trademark Trial and Appeal Board, challenging the USOPC's trade marks. This was a very surprising move on Puma's part given that the USOPC has historically received strong statutory and judicial support for the protection of its intellectual property rights. The USOPC responded by initiating proceedings against Puma alleging, amongst other things, trade mark infringement and violations of US legislation which regulate the commercial use of certain Olympic expressions. Both parties' proceedings were voluntarily dropped.
This example shows how some brand owners can seek out the limelight by taking offensive legal action against the intellectual property rights of event organisers. It illustrates how important it is for sponsors to be well-prepared to defend their intellectual property rights.
From a legal perspective, the key areas of potential assistance are the ACL, the tort of passing off and if available, the relevant specific anti-ambush marketing legislation.
Section 18 of the ACL creates a broad prohibition on misleading or deceptive conduct. It states that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive, or likely to mislead or deceive. If an ambush marketing campaign, viewed objectively, has a real or not remote chance or possibility of misleading or deceiving an ordinary, reasonable member of the public as to the advertiser's association with the major event, then it will be in breach of section 18 of the ACL.
Section 29(1)(h) of the ACL creates a further prohibition on making false or misleading representations that a person has a sponsorship and approval of affiliation that they do not have.
A range of remedies are available under the ACL for contraventions of sections 18 and 29, including:
Ambush marketing may also constitute passing off where:
However, sections 18 and 29 of the ACL and passing off will only be of assistance in some contexts. Ambush marketing campaigns often make it clear that the advertiser does not have an official sponsorship, such as in the BrewDog and Duolingo examples discussed above. In these scenarios, it would be difficult to say that an ordinary, reasonable member of the public would be misled as to the advertiser's association (or disassociation) with the event. It may be even more difficult for a sponsor to establish the tort of passing off, as damage suffered may not be easily quantifiable.
Major events legislation may be enacted to prohibit the unauthorised use of indicia and images associated with specific events and to provide remedies for such unauthorised use.
For example, the Major Sporting Events (Indicia and Images) Protection Act 2014 (Cth) (MSEP Act) provides special protection in relation to major sporting events specified in its Schedules. Currently, the ICC Men’s T20 World Cup 2022 and the FIFA Women's World Cup Australia New Zealand 2023 are the major sporting events specified. The MSEP Act provides that only authorised persons (in accordance with the relevant authorisation) and event bodies may use any of the relevant event's protected indicia and images for commercial purposes during the protection period.
Another example of major events legislation is the Olympic Insignia Protection Act 1987 (Cth) (OIP Act). The OIP Act makes provision for the protection of the Olympic insignia by designating the Australian Olympic Committee (AOC) as the owner of copyright in the Olympic symbol and the owner of certain Olympic designs. The OIP Act also prohibits persons other than the AOC or licensed users, from using specified protected Olympic expressions, being "Olympic", "Olympics", "Olympic Games", "Olympiad", "Olympiads", for commercial purposes. The OIP Act provides a suite of remedies for the prohibited use of protected Olympic expressions, including injunctions, corrective advertisements, damages, account of profits and the destruction or delivery of goods.
Of course, many ambush marketing campaigns are carefully crafted so that they do not amount to a contravention of applicable law. For example, they may not actually use any of the official indicia associated with the event, or it may be clear from the nature or content of the campaign that the business is not an official sponsor. Further, even where the conduct does contravene an applicable law, enforcement action can backfire if perceived by the public as being too heavy-handed or if it amplifies the ambush marketers message.
Event organisers and sponsors accordingly need to adopt other strategies to seek to mitigate the impact of ambush marketers.
An event organiser's ability to maximise the commercial return of the sponsorship opportunities they offer depends on its ability to offer value to its sponsors.
Potential strategies for event organisers include:
Some strategies for sponsors to consider include:
Authors: Anita Cade, Partner; Maria Sun, Counsel; Lachlan Wright, Senior Associate; and Karen Wang, Graduate.