Ambush Marketing: How organizers rein in free riding on sports’ appeal
On the 14th of June, the UEFA EURO 2024 football tournament kicked off in Germany. This marked the start of a summer that promises to become a real treat for every sports enthusiast out there. Not only will we enjoy the yearly regulars like Le Tour de France (Femmes), Wimbledon, the US Open and a number of Formula One races, but also the Olympic and Paralympic Games are back again after four years, and this time back on European soil in Paris, France.
These major sports events are not merely of interest to sport fanatics. It can also be a great opportunity for every business owner to use the attractiveness and mania surrounding these events to their advantage. However, becoming an official sponsor is not always possible, so the temptation is there to try and ride the wave without paying for it. When doing this, companies must be extremely cautious as there are legal frameworks in place limiting the degree to which they might use or refer to any of the well-known images or words related to these events. In this article, a brief explanation will be provided as to the general legal framework protecting the organizers and official sponsors of these events against this so-called “ambush marketing”.
Ambush marketing
Ambush marketing can be defined as all activities not authorized by the right holders in the fields of marketing, promotion and advertising in any form in connection with major sports events which somehow seeks to benefit from the goodwill or general interest in the major sports event.[1] This generally comprises all the marketing communication activities of a brand seeking to capitalize on the attention, awareness, fan equity, and goodwill generated by having an association with an event, beyond the official or authorized rights of association delivered by that event (to its sponsors).
One of the most well-known examples of ambush marketing was the stunt of the Dutch beer brand Bavaria during the FIFA football world cup in South Africa in 2010 where, during a game between the Netherlands and Denmark, a group of female fans put on bright orange dresses that were also widely advertised by the brand itself and hence clearly recognizable as such by the Dutch audience. While the Belgian beer brand Jupiler was the official sponsor of the FIFA world cup for the Benelux audience, Bavaria’s stunt clearly drew the attention away from Jupiler to the benefit of its own brand.[2]
Although most European countries do not have a separate legal framework for the protection against ambush marketing, such protection is generally granted through diverse legislation including, without limitation, intellectual property law, the legislation on unfair and misleading market practices and some ad hoc legislation.
Trademark, design and copyright law
The IOC and the BOIC (“Belgian Olympic & Interfederal Committee”) have registered over 6000 trademarks, with the following being the most noteworthy:
- The Olympic Symbol (rings) both in black and white and in color variations
- The word marks ‘OLYMPIC’, ‘OLYMPICS’, ‘OLYMPISCH’, ‘OLYMPIAN’, ‘BELGIAN OLYMPIC TEAM’
- The slogan ‘CITIUS ALTIUS FORTIUS’ (and the motto’s of the different organizing committees)
The UEFA owns hundreds of trademarks, including among others:
- The word and device marks ‘UEFA’, ‘EURO 2024’, ‘UEFA EURO 2024’
- The device mark ‘BERLIN 2024’ and, in the same way, the names of the other German host cities
These marks, as well as the marks of the Tour de France and the other major sports events are generally registered for a wide variety of goods and services in almost all international classes. Although these registrations may not always be used for all goods and/or services covered therein, the fact remains that they may well be considered as marks with a reputation or even as well-known marks under Art. 6bis of the Paris Convention. Based thereupon, the event organizers may thus already be able to prohibit the use of these marks or similar signs on the basis that such use takes unfair advantage of the reputation of their mark.
The respective proprietors of these marks may also claim the broader protection provided by Art. 2.20 (2) sub d of the Benelux Convention on IP. Based on this provision, the use of a conflicting sign even for mere advertising or decorative purposes would amount to trademark infringement if it would take unfair advantage of or damage the reputation of the sports event’s marks without due cause.
Last, but not least, some of the visual features of the sports events’ brands and other imagery are also protected under copyright and/or design law and may not be reproduced, altered, etc. without their consent.
Unfair market practices legislation
The Belgian Code of Economic Law (“CEL”) stipulates that any act that is contrary to honest commercial practices and pursuant to which a company damages or is likely to damage the business interests of one or more other companies should be prohibited. This is a catch all provision that could be invoked by both the event organizers and its official sponsors, especially considering that ambush marketing activities may deceive the public regarding the alleged sponsorship rights.
The Belgian CEL (and the European Unfair Commercial Practices Directive) furthermore contains some very specific references to sponsoring and affiliation and namely prohibits commercial practices (statements, symbols, actions…) that could deceive the average consumer about the company’s direct or indirect sponsorship or about any affiliation or connection to another company or entity.
These rules hence clearly concern the situation that a company makes it appear to be affiliated or connected with the Paris 2024 Olympic and Paralympic Games, the UEFA EURO 2024 tournament and any other sporting event or any of its sponsors.
Ad hoc legislation
As is often the case, the host of this year’s Olympics, France, adopted special legislation to safeguard the protection of the Olympic properties. By integrating articles L. 141-5 and L. 141-7 in the French Sports Code, the French National Olympic and Sports Committee became the proprietors of the national Olympic emblems and was assigned the task to protect the acronym ‘JO’, and other associated elements including the logo, mascot, slogan, and posters. Any infringer can face the criminal sanctions listed in the French Intellectual Property Code. These include, amongst others, civil liability for damages, and even up to four years' imprisonment.[3]
Similar protection was awarded to the Olympic properties in Germany[4] and the United Kingdom[5].
Already in 1983, the French Community in Belgium enacted legislation stipulating that only the BOIC and persons authorized by the BOIC are authorized to use, for commercial or advertising purposes, the expressions “Olympic Games”, “Olympiads”, “Olympic”, the motto “Citius, altius, fortius”, the Olympic symbol consisting of five interlaced rings in blue, yellow, black, green and red and the emblem of the BOIC. Any person using these signs or expressions, or confusingly similar signs or expressions, without the BOIC’s authorization will be sanctioned with imprisonment and/or a penalty.[6]
Guidelines
For each major sports event, the organizing committee issues brand protection guidelines to help companies understand which types of marketing and communications are considered allowed. While these guidelines are obviously redacted from the point of view of the event organizer and with the purpose to protect its and its official sponsors’ interests to the broadest possible extent, they already serve as a good guidance in estimating whether a company may expect facing challenges by the event organizer when launching a marketing campaign or communication making reference to the event.
We provide some examples from these guidelines below:
- UEFA EURO 2024 Notice and Guidance on use of the EURO 2024 Marks[7]:
An individual or business may use UEFA’s word marks in a commercial context if the use is purely descriptive and does not imply an official association with UEFA or EURO 2024 (e.g. a venue promoting the fact it will be screening the tournament: “Come and watch The Euros throughout June and July”, or “We will be showing all Euro 2024 games”). However, the commercial use of the EURO 2024 logos or emblems will be prohibited in any case and the use of the EURO 2024 word marks must be no more prominent than the rest of the text featured. Further, the word marks should not be used in conjunction with the names or logos of any other brands or businesses
- Paris 2024 Brand Protection Guide[8]:
Paris 2024 requests that non-affiliated entities uphold the intellectual property rights of the IOC, the IPC, and Paris 2024 and conduct their operations without establishing any commercial association with the Paris 2024 Olympic and Paralympic Games
For companies or organisations that are not part of Paris 2024, an infringement of the rights of Paris 2024, the IOC and/or the IPC would be:
- The use of the Paris 2024 emblem on printed or digital media.
- The use of Olympic and/or Paralympic terms and the image of the torch.
- The use of the terms “Olympic” and “Paralympic”, or terms evoking the Olympic and/or Paralympic Games.
- The use of the Olympic and/or Paralympic symbol.
- The creation of shapes and colours that recall the Olympic and/or Paralympic symbol.
- Publications on the social media accounts that include the use of Paris 2024 Olympic and/or Paralympic properties and assets in the form of hashtags
Conclusion
The legal scheme surrounding major sports events is extremely rigorous. Although it can be tempting to associate yourself with these events, make sure that it is clear to the consumer that your business is in no way affiliated to the event, the athletes, or a national team. By consulting with your IP specialist, big fines and lawsuits can be avoided.
Accordingly, we encourage you to seek advice from our IP experts at De Clercq & Partners to assess whether your planned marketing campaign or communication could face valid challenges from the event organizers. For more information, please do not hesitate to contact us at info@dcp-ip.com.
[1] AIPPI Working Committee, Guidelines Question Q210 “Protection of Major Sports Events and associated commercial activities through Trademarks and other IPR”, 15/07/2009, www.appi.org.
[2] See https://www.marketingweek.com/fifa-hits-back-at-bavaria-after-ambush-marketing-stunt/; more examples at: https://anthillonline.com/olympic-ambush-advertising-wins-nike-durex-and-specsavers-video/
[3] Art. L. 716-9 French Intellectual Property Code.
[4] Law of March 31, 2004 for the Protection of the Olympic Emblem and the Olympic Designations (OlympSchG).
[5] United Kingdom Olympic Symbol etc. (Protection) Act 1995.
[6] Decree of the French Community of Belgium of March 30, 1983 regarding the protection of the Olympic symbol, the emblem and the motto.
[7] https://editorial.uefa.com/resources/028e-1b1b755d57cc-2862ffddc1d2-1000/guidance_on_use_of_euro_2024_marks_en_20240611165731.pdf.
[8] https://medias.paris2024.org/uploads/2024/03/Paris2024_BIL_240228_Brand-Protection_EN.pdf, and also: https://www.paris.fr/en/pages/business-professionals-everything-you-need-to-know-about-olympic-brand-protection-27407 and https://www.teambelgium.be/over-het-boic/olympische-eigendommen.