ambush marketing

1

AMBUSH MARKETING

A. Introduction

1.01B. A Free Spectacle

1.04C. The Sponsorship Market

1.06The type of sponsorship

arrangements

1.11D. Guerilla Marketing

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E. What Is Ambush Marketing?

1.15Ambush marketing: association and

intrusion

1.19Effectiveness of ambush

marketing

1.20F. Types of Ambush Marketing

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A. Introduction

Ambush marketing is fast and transient. It also takes many forms: sometimes legal, sometimes illegal. The more decisive the action taken against ambush marketers and counterfeiters the greater the value of sponsorship rights. After all, sponsors are not going to invest money in an event if they can take advantage of an association for nothing.

Any type of event (or indeed anything else) can be the

subject of an ambush marketing campaign.1 Indeed, where an event is developing and there are no sponsors available, someone associating with the event can have a positive benefit in terms of publicity. Yet once that event starts seeking sponsors it has to be able to ensure that those free-riders are no longer going to be able to make the association.

Drawing favourable associations between go

ods or services and events is what marketing is all about. This is why ambush marketing is often, rightly or wrongly, simply thought to be a good marketing strategy.

The wide ambit of ambush marketing, a concept discussed below, is most commonly thought of in relation to sports events. The development of the laws in this field has been on the back of major sporting events and, in particular, the Olympics. This is because the cost of hosting the Games could originally be met by relatively modest sponsorship and individual or governmental benefactors. The early Olympic events cost under US$500,000 to host,2 but as the cost escalated so did the need to protect what is otherwise a free spectacle.

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1 The 2006 Sundance Film Festival was particularly affected: see S Zeitchik, ‘For Sundance, swag becomes a drag’, 25 January 2007, available at <http://ww w . v ariet y .com/a r ticle/VR1117958114>.

2 CF Zarnowksi, ‘A Look at Olympic Costs’ (1992) 1 Citius, Altius, Fortius 16; according to Zarnowski

in 1992 dollars the cost for the 1896 Olympics was US$448,000; for the 1908 Olympics, US$394,000; for the 1924 Olympics, US$518,000. After the Second World War the costs started to rocket out of control.

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Chapter 1: Ambush Marketing

B. A Free Spectacle

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There is no legal protection for events as such.3 People who see an event cannot be prevented from reporting what happened and event organizers cannot stop anyone from observing an event from afar and making whatever use of it

they choose.4 This is not to suggest that there have not been attempts over the years to try and claim property rights over an event or spectacle. A multitude of rights have been unsuccessfully relied upon to try and achieve this, including

copyright,5 trespass,6 and breach of confidence. But the traditional common law view is that it is difficult to attach

any precise meaning to the phrase ‘property in a spectacle’. A ‘spectacle’ cannot, therefore, be‘owned’ in any ordinary sense of that word.7

Nevertheless, the law of confidence has developed significantly over recent years and it appears that with strict controls photographs taken at a ‘private’ event can fall under a duty of confidence.8 It has even been suggested that it is now possible to prevent the publication of exclusive stories under the laws of confidence.9 If this is right then an event organizer can impose strict conditions10 of confidentiality on anyone attending the event to ensure that no photographs are taken.11 This might protect broadcasting rights and the protection of certain images, but such protection is unlikely to extend to preventing attendees imparting information to the world about the event12 or, more importantly, making associations with the event. Using the law of confidence to prevent ambush marketing is unlikely to be successful and, in many cases, would be of little value to the organizer or sponsors of the event. A sponsor wants as much coverage of an event as possible, saturation coverage being the ideal. This means that using the law of confidence to limit access to an event is not in the sponsors’ interest and, to some extent, not in the interests of the event organizer.13 Sponsorship is not only important to the organizers of events, but it is also a very effective marketing tool for sponsors and so there is now a significant sponsorship market.

3 In relation to other jurisdictions see A Wise, ‘A “Property Right” in a Sports Event: Views of Different Jurisdictions’ (1996) 4(3) Sport and the Law Journal 63; and J Blais, ‘The Protection of Exclusive Television Rights to Sporting Events held in Public Venues: An Overview of the Law in Australia and Canada’ (1992)

18 Melbourne LR 503. There were also proposals to the Gregory Committee to protect sporting events usingcopyright; see Report of the Copyright Committee (Gregory Committee) (1951) Cmd 8662, [158]–[164].

4 See BBC v Talksport [2001] FSR 6 (where an injunction is refused to prevent a radio broadcaster watching

TV footage of EURO 2000 and commenting on it, but calling it ‘live’).

5 See R Arnold, ‘Copyright in Sporting Events and Broadcasts or Films of Sporting Events after Norowzian’ (2001/2) Yearbook of Copyright and Media Law 51, 57; where it is suggested that it could not be a dramatic work as it is not presented or consumed as ‘drama’ (but other major events might satisfy this requirement).

6 See Goodwood Racecourse Limited v Satellite Information Services [2004] EWHC 2364 (Ch),

[51]–[53].7 Victoria Park Racing v Taylor (1937) 58 CLR 479, 496 (Aus); see the discussion of this case in Australian

Broadcasting Corp v Lenah [2001] HCA 63.8 Douglas v Hello! Ltd [2007] UKHL 21, [2008] 1 AC 1, see in particular at [123].9 R Arnold, ‘Confidence in Exclusives: Douglas v Hello! in the House of Lords’ [2007] European

Intellectual Property Review 339, 343.10 See para 9.04.11 But as Richard Arnold QC asks, what of mobile phones

incorporating cameras? R Arnold, ‘Confidence in Exclusives’ [2007] European Intellectual Property Review 339, 343.

12 Douglas [2007] UKHL 21, [2008] 1 AC 1 [112].13 See discussion of broadcasting rights, paras 7.32–7.45.

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C. The Sponsorship Market

C. The Sponsorship Market

The sponsorship market is huge. It is predicted that the value of worldwide global sponsorship in 2010 was US$46.3 billion (a 5.2 per cent increase over 2009), the North American share of this being US$17.2 billion and that of Europe being

US$12.9 billion.14 This growth is attributable to the

increased awareness of both sponsors15 and sponsored.

Unsurprisingly, the primary reason that companies sponsor events is to fulfil their communication and strategic

objectives and to fit their broader marketing strategy,16

although it is also sometimes used as a defensive strategy to

prevent competitors sponsoring the event.17 The other reasons for sponsoring an event are often self-evident. In a study of Guinness’s reasons for sponsoring the 1999 Rugby World Cup the company indicated they wanted to increase consump- tion in priority markets in the lead-up to, and during, the event; to be perceived as the dominant sponsor of the event; and to the develop the brand, in particular, in relation to a young demo- graphic. It turned out that 94 per cent of the public perceived Guinness as the dominant sponsor and sales over

the period increased by up to 37 per cent in some countries.18

Another example of the potential benefits from sponsorship is Cornhill Insurance who invested £2 million per year to sponsor English test cricket. The public recognition of the brand over the five-year sponsorship period increased from 2 per cent to 21 per cent and sales increased by between £15

million and £20 million.19 The cost of doing this by conventional advertising was estimated to be £50 million. Of course it can go the other way as well. Roy Keane, the former Manchester United and Ireland captain, was paid (reportedly £500,000) to front the 7-UP campaign in Ireland during the lead-up to the 2002 World Cup. However, when Roy Keane fell out with the Ireland manager and was sent home, 7-UP felt the wrath as its campaign posters were defaced and its

specially produced cans boycotted.20 As the significant benefits associated with sponsorship (albeit with an attendant risk) became evident to marketing departments its antithesis

—ambush marketing—was certain to develop.

The rise of ambush marketing was a result of the increasing sophisti

cation of sports sponsorship. The sponsoring of events and athletes probably began when competitions started. The Olympics present a prime example. The Games have had some form of sponsorship from their very beginnings21 and there were some early disputes about people claiming links with the Games.22 The 1950s and 1960s saw a substantial increase in the number of sponsors,

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14 IEG Sponsorship Report (22 December 2010).15 See K Gwinner, ‘A Model of Image Creation and

Image Transfer in Event Sponsorship’ (1997) 14(3) International Marketing Review 145; L Cousens and T Slack, ‘Using Sport Sponsorship to Penetrate Local Markets: The Case of the Fast Food Industry’ (1996) 10(2) Journal of Sports Management 169.

16 R Burton et al, ‘Organizational Power Games’ (1998) 7(1) Marketing Management 27.17 R Burton et al, ‘Organizational Power Games’ (1998) 7(1) Marketing Management 27, 31.18 See S Rines, ‘Guinness World Cup Sponsorship: A

Global Platform for Meeting Business Objectives’ (2001) 3 International Journal of Sport Marketing and Sponsorship 449.

19 B Witcher et al, ‘The Link Between Objectives and Function in Organizational Sponsorship’ (1991) 10

International Journal of Advertising 13.20 B Dresden, ‘Backing a loser’, Observer, 3 June 2002.21 There is evidence of cities or Greek regions sponsoring chariots at the ancient Olympics: see J Swaddling,

The Ancient Olympic Games, 3rd edn (British Museum Press 2004), 97–8.22 See SG Martyn, ‘Making Dough The Helms Bakery Company vs. the United States Olympic Committee on

the Issue of Commercializing Olympic Symbols, 1932 to 1953’ in Proceedings of the 24th Annual Conference of the

Ninth American Society for Sports History (N Boucher ed) (1996), relating to complaints from the USOC regarding


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but during this period anyone who wanted to become a

sponsor could arrange some sort of deal.23 As everyone was welcome and varying levels of sponsorship existed there was no need to ambush an event. But this approach to sponsorship did not provide sufficient funds for either hosting the Olympics or the running of the International Olympic Committee (IOC).

The Olympics were therefore facing near collapse in the late 1970s when the new President— Juan Antonio Samaranch—made a decision which transformed the management of the Olympics and in turn of sports events. The IOC started selling global sponsorship and broadcasting rights. This revolution was consolidated by Peter Ueberroth, President of the Organising Committee for the 1984 Los Angeles Olympics, who instituted three categories of sponsor: official

sponsor, official supplier, and official licensee.24 The new defining characteristic of his approach was exclusivity: keeping marketers out for the first time. This new tactic raised the money necessary to host the Games (it even created a

surplus),25 but it also gave rise to ambush marketing.

The type of sponsorship arrangements

The range and complexity of sponsorship agreements has increased dramatically. They now set out such things as any rights to have logos placed in and around venues or on sports stars, access to athletes, hospitality advantages, and the use of the event’s brand. This multiplicity of benefits has led to a variety of different levels of sponsor . This complexity is demonstrated by the London 2012 Games, which have the following sponsors:26

Name ofProgramme

Administered by Summary of rights granted

The Olympic Partners Programme

The Olympic Suppliers Programme

This grants exclusive global marketing rights within a product category and at all levels (IOC,

NOC,26

and Organisin

g Committees). They get the right to use Olympic insignia, hospitality at the Games, preferential access to Olympic broadcasts. They also are entitled to on-site sales or showcasing as well as membership of the recognition programme.

IOC This programme gives much more limited rights.

It does not normally include any direct support for staging the Games, but instead for assisting the IOC with running the movement.

The London2012 PartnershipProgramme

London OrganisingCommittee

There a three tiers of sponsorship (Tier 1, 2, and 3).

Tier 1 is intended to raise about 80 per cent of revenues for LOCOG by cash sponsorship.

Tier 2 is a mixture of sponsorship in cash and in kind. Tier 3 is for sponsorship in kind.

false claims of sponsorship made in relation to the 1932 Games. Similarly, in the 1960s the words ‘Olympic butter’,‘Olympic sugar’, and ‘Olympic petrol’ were widely used: See Circular No AB/M/487, 26 April 1969, BrundagePapers, Box 71 (cited in R Espy, The Politics of the Olympic Games (University of California Press, 1979), 135).

23 ‘Sponsorship is an Olympic Tradition’, Time Magazine Australia, 9 January 1997.24 M Payne, ‘A Gold-Medal Partnership’ (2007) 43(Spring) Strategy+Business.25 CF Zarnowksi, ‘A Look at Olympic Costs’ (1992) 1 Citius, Altius, Fortius 16, 28.26 Each NOC gets a share of the money raised under the TOP program.

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D. Guerilla Marketing

The revenues generated by the Olympic sponsorship regime have become vast and so, unsurprisingly, other federations have started to follow suit. The Fédération Inter- nationale de Football Association (FIFA) now has three broad categories in its sponsorship programme:

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Name ofProgramme

Administered by Summary of rights granted

FIFA Partner FIFA This is the highest level of support. It includes global rights and is not limited to a particular competition. The rights include the use of the official marks, exposure in and around the stadium, in all FIFA publications, and on its website. It also includes membership of the FIFA World Cup sponsor recognition programme and hospitality opportunities. Finally, it gives preferential access to broadcast advertising alongside the World Cup.

FIFA World CupSponsor

FIFA The rights are limited to the FIFA World Cup, but they remain global. They include category exclusivity, brand association, select marketing assets, and secondary media exposure.

National Supporter FIFA This allows ‘local’ companies to promote an association with the FIFA World Cup, but only within the host country. This includes category exclusivity, association, local marketing programmes, and domestic media exposure.

Similar arrangements have been created by the Football Association (although these are far more complicated—they include: lead partners, event partners, learning partners, commu- nity partners, and so forth). These levels, however,

have also

made it easier to ambush events as the complexity and fluidity of the arrangements make it more difficult for consumers to understand who is, and who is not, an official

sponsor.27

D. Guerilla Marketing

The development of ambush marketing can be seen as a result of the shift brought about by so-called ‘guerrilla marketing’, which originated with Jay Conrad Levinson’s book on the subject in 1983.28 The basic premise of guerrilla marketing is that you can exchange substantial financial investment in marketing for investments in the form of time, energy, imagination, and information.29 What guerrilla marketing demonstrated was that small businesses can undertake effective marketing; all that was required was innovation and sometimes extreme methods of marketing. Guerrilla marketing techniques include things which now appear everyday such as attractive women approaching men on the street to talk about products, handing out free gifts, putting up ‘fly’ posters in prominent places, or making an entertaining film hoping it will become popular on social networking sites. One of the most successful

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27 D Shani and D Sandler, ‘Ambush Marketing: Is Confusion to Blame for the Flickering of the Flame?’ (1998) 15(4) Psychology & Marketing 367, 371–2.

28 J Conrad Levinson, Guerrilla Marketing: Secrets for Making Big Profits from Your Small Business (Houghton

Mifflin, 1984); now in a fourth edition, 4th edn (Piatkus 2007).29 JC Levinson, Guerrilla Marketing, 4th edn (Piatkus 2007), 5.

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brands built almost exclusively using guerrilla marketing was

Red Bull.30 It started marketing by focusing on local and influential DJs, clubbers, and other social trendsetters and used them to create the brand through word of mouth. This was an approach it later called its seeding program. This sort of marketing technique had began to evolve in the early 1980s, but now nearly thirty years later it is difficult to distinguish guerrilla marketing from mainstream marketing. Yet if one retains the core ideal of guerrilla marketing—clever ideas over big spending— then it is clear where ambush

marketing fits in as one form of guerrilla marketing.31

E. What is Ambush Marketing?

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The term ‘ambush marketing’ was coined by Jerry C Welsh,

while he was at American Express.32

He has described ambush marketing as a marketing strategy that uses the same themes as sponsors to vie with them for

marketing pre-eminence.33 As with so many other neologisms the meaning of the word has changed considerably since it was coined. Outside marketing circles, however, it has largely become a pejorative term to suggest benefits being ‘stolen’ from sponsors.

Inside those circles, it has been given a variety of meanings . It has been indicated that ambush marketing should be defined as a planned campaign by an organization to associate itself indirectly with an event in order to gain at least some of the recognition and benefits that are associated with being an official sponsor.34 Or as a type of marketing by a company that is not an official sponsor of an event, but which places advertising using the event to induce customers to pay attention to the advertisement.35 More broadly still it is where a non-sponsoring company attempts to deflect the attention to itself and away from the sponsoring company, which undermines the effectiveness of the sponsorship communication and so the value of the sponsorship.36 The IOC describes it as any attempt by an individual or entity to create an unauthorized or false association (whether or not commercial) with an event thereby interfering with the legitimate contractual rights of official marketing partners of the event.37 At its broadest this sort of definition creates a proprietary right in a contractual agreement.38 Contracts cannot bind anyone who is not a party and they cannot in themselves

30 See S Chadwick, S Gorse, and N Burton, ‘Entrepreneurship in Sport: How Dietrich Mateschitz Built The

Red Bull Brand In A Day’ (2009) (CIBS Working Paper Series No 11).

31 Although sometimes ambush marketing is used as a synonym for guerrilla marketing (and vice versa): see for example, A Scaria, Ambush Marketing: Game within a Game (Oxford, 2007), 31.

32 This is widely acknowledged, but he explains his own views on what it is at: J Welsh, ‘Ambush Marketing: What it is, What it isn’t’ (Welsh Marketing Associates 2002) available at <http:// w elshmktg.com/WMA_ ambushmktg.pdf>.

33 J Welsh, ‘Ambush Marketing: What it is, What it isn’t’ (Welsh Marketing Associates 2002) available at

<http:// w elshmktg.com/WMA_ambushmktg.pdf>. 34 This definition comes from D Sandler and D Shani,

‘Olympic Sponsorship vs “Ambush Marketing”: Who Gets the Gold?’ (1989) 29 Journal of Advertising Research 9, 11.

35 JT McCarthy, Trademarks and Unfair Competition (4th edn, 1998–2011), §27.66; the definition by Owen Dean is also worth considering: ‘Ambush marketing takes place when a trader seeks to utilise the publicity value of an event, for instance a major sports tournament or concert, to gain a benefit from it despite not having an involvement or connection with that event and more particularly having made no financial contribution to entitle him to derive benefit from it.’ See O Dean, ‘Ambush Marketing’ (2000) (June) De Rebus 24.

36 T Meenaghan, ‘Ambush Marketing: Corporate Strategy and Consumer Reaction’ (1998) 15(4) Psychology & Marketing 305, 306.

37 See IOC Requirements on Brand Protection and Ticket Touting (released by FOI request to DCMS; Request No 26585: <http://ww w .cultu r e.g o v .uk/images/f r eedom_of_informatio n/Case26585.pdf>, point 1; the source refers only to the Olympics; the explanation above has been broadened to make it of general application).

38 This is more or less what the London Olympics association right and the Glasgow Commonwealth Games

association rights do: see Chapter 6.

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E. What is Ambush Marketing?

create a property right. Therefore, the prevention of ambush marketing requires recourse to a wide range of legal sanctions and remedies many of which do not immediately spring to mind.

The rise of ambush marketing is directly related to the media attention given to major events. It has been noted that during some major events up to a fifth of total broadcasting output is

dedicated to the event.39 Such attention, national or international, will inevitably attract sponsors. The market for sports sponsorship with its exclusivity deals, like all exclusive rights, pushes up the market price. Even the largest businesses cannot sponsor every major sports event. A sponsor may think its core customers are rugby fans and so they sponsor the Rugby World Cup or the Six Nations; however, when the Olympics or the FIFA World Cup is in the news that company may still want to be associated with the event, but cannot afford to do so or, possibly, does not think the association is worth the money demanded: it may then ambush. It is not just the cost of marketing which attracts ambush marketers; there are also issues associated with inappropriate sponsorship packages being offered to potential

sponsors.40 Some marketing departments may believe they can increase market awareness more effectively by associating or intruding upon the event’s space with their own methods than using official channels.

Ambush marketers now fall into two broad groupings. The first is the counterfeiter or spiv who is either operating outside the law or very close to its borders. The second is the (usually) legitimate organization, which may even be a household name, conducting a marketing campaign to take advantage of an event. To maintain the highest sponsorship revenues event organizers believe that both types of ambush marketing have to be addressed.

Ambush marketing: association and intrusion

The lack of any clear meaning of ambush marketing means that a wide range of activities are considered to fall within its ambit; but as marketing evolves and marketers get smarter (and legal restrictions get tighter) the range of activities will change. There are, however, two classes of ambush marketing. First is ambush marketing by association : this is

where an association or link is created by a trader usually by way of a representation suggesting some form of association between that trader an

d the event, but it does not require consumers to be misled as to sponsorship.41 The second type is called ambush marketing by intrusion: this is where a trader takes advantage of the event by using the space in, around, or near the venue to seek publicity.42 It requires no association with the event to be made by the trader at all; indeed it may be a result of what might otherwise be a perfectly normal promotional activity. Ambush marketing by intrusion involves the ambusher trying to make contact with those attending the event, and in particular the media in all its forms, so as to attract additional publicity to the ambusher’s brand than that which its promotional activity would otherwise achieve. It is best understood by reference to the common strategy of taking steps so that the product, logo, or other aspect of the corporate brand is photographed or broadcast

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39 T Phillips, ‘A Great Summer of Sport’ (1998) 273 Contemporary Review 150, 151.40 J Welsh, ‘Ambush Marketing: What it is, What it isn’t’ (Welsh Marketing Associates, 2002) <http://

welshmktg.com/WMA_ambushmktg.pdf>.

41 Although a tighter definition was proposed by O Dean, ‘Ambush Marketing and Protected Events’ (2003) (November) De Rebus 20 (‘In this form of ambush marketing, the ambush marketer misleads the public into thinking that he is an authorised sponsor or contributor associated with the event.’)

42 See also O Dean, ‘Ambush Marketing and Protected Events’ (2003) (November) De Rebus 20, 21 (‘The

ambush marketer does not seek to suggest a connection with the event but rather to give his own brand, trade mark, or other insignia exposure through the medium of the publicity attracted by the event and without the authorisation of the event organiser.’)

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at or near the event. The usual publicity would be from the logo being seen by passers by, but the additional publicity, the ambush as it were, is when viewers at home see it as well.

Effectiveness of ambush marketing

In the lead up to the 2010 World Cup, Nike made a three-minute short film ‘Write The Future’ featuring Wayne Rooney, Cristiano Ronaldo, and Fabio Cannavaro and released it on YouTube. Nike relied on the viral effect for internet users to watch the film, and within five days of the

advertisement’s release, it had over 2.5million viewers.43

This enabled Nike to generate 30.2 per cent of the online

buzz at the beginning of the tournament44 compared to Adidas, the official sponsors, who generated only 14.4 per cent. However, during the tournament Adidas’s buzz eventually overtook Nike’s (although much of this was

related to the controversial Adidas Jabulani ball).45 The concept of measuring buzz is relatively new, the ambusher being more closely associated with the event than the sponsor is not. Nearly twenty years earlier Wendy’s took steps to saturate the commercial breaks in the television coverage of the 1992 Olympics with its adverts. They were so successful that most viewers believed that they, rather than

McDonalds, were the official sponsors.46

F. Types of Ambush Marketing474849

The nature of ambush marketing is such that no definitive list or categorization can be produced of what amounts to ambush marketing, but the following attempts to set out some pointers of what sorts of things might be relevant.

Type of marketing Examples

Sponsoring media coverage of the event

Buying significant advertising during the commercial breaks in events48

Fuji was worldwide sponsor of the 1984 Olympics, but Kodak sponsored the ABC television

broadcasts of the Games.47

Wendy’s ran an advertising campaign (both broadcasting and otherwise) around the 1992 Olympics despite MacDonald’s

being the official sponsor.49

43 W Wee, ‘Nike’s Star Studded Viral Ad Spices Up World Cup 2010’ (23 May 2010) at <http://www. pennolson.com/2010/05/23/nikes-star-studded-viral-ad-world-cup-2010/>.

44 Buzz is essentially a measure of the number of times a particular brand is mentioned in online media (such

as blogs, videos or films uploaded, and so forth) and how many hits there are for particular websites (eg viewers of a YouTube video) over a particular period of time. There are a number of different ways of assessing so-called buzz and most media tracking firms have their own approach.

45 See ‘World Cup Sponsors Recover From Competitor Ambushes’ (2 July 2010) at <http://blog.nielsen.com/

nielsenwire/online_mobile/world-cup-sponsors-recover-from-competitor-ambushes/>.

46 T Meenaghan, ‘Ambush Marketing—A Threat to Corporate Sponsorship’ (Fall 1996) Sloan Management

Review 103, 107.

47 This is widely credited as the first case of ambush marketing and is widely cited as an example: eg A Bayless

‘“Ambush” Marketing is Becoming Popular Event at Olympic Games’ The Wall Street Journal, 8 February 1988.There were earlier instances of unauthorized claims of sponsorship (see para 1.09, n 22), but not usually to the detriment of a direct rival.

48 Also see S Mckelvey, ‘Atlanta ’96: Olympic Countdown to Ambush Armegaddon’ (1994) 4 Seton Hall J

Sport 397, 403–4


Review 103, 107

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F. Types of Ambush Marketing


Sponsoring a sub-category of an event

Kodak was the official worldwide sponsor of the1988 Olympics, but Fiji sponsored the US Olympic swimming team.50

Sponsoring a venue Carlton & Newcastle complained when Toothey’s suggested that it was the beer of choice at the Stadium Australia (which it usually sponsored) even though it was not an

Olympic sponsor.51

Sponsoring players or making contribution to the ‘players’ pool’

Buying out billboards near Olympic venue

Using an airship (blimp) or other vehicle near a venue so that it is visible to spectators and media coverage

Displaying a banner so that it is visible from the stadium

Ian Thorpe was sponsored by Adidas when Nike was the official sponsor of the clothing supplier for the Australian team. Thorpe draped a towel over the Nike logo

when he was being filmed.52

This follows Michael Jordan covering up his Reebok logo (Nike being his sponsor) when he accepted the gold medal in the

1992 Olympics.53

Nike bought out all the billboards in and around theOlympic venues during the Atlanta 1996 Games.54

Nike flying a balloon over the stadium for the 1994 Goodwill Games in St Petersburg despite Reebok being sponsor. Nike continued by selling training shoes

near the cycle racing.55

The notorious Holden blimp was flown to events so that there was a giant advertisement in the

background,56 the most famous occasion being at the AFL Final, which was sponsored by

Toyota.57

The Hugo Boss boat followed Tiger Woods around at the British

Open 2009 to ensure it was included in the television

coverage.58

Southern Electric displayed a banner saying ‘Southern Electric. Go England’ on the gas towers outside the Oval Cricket Ground when NPower was the official

sponsor.59

(cont.)


Review 103, 106–7.51 ‘Olympic Beer Sponsor Sues Stadium Australia Rival’, 27 September 2001, <http://ww w .spo r tbusiness.com>. 52 J Curthoys and C Kendall, ‘Ambush Marketing and

the Sydney 2000 Games (Indicia and Images) Protection Act: A Retrospective’ (2001) 8(2) Murdoch University Electronic Journal of Law.

53 See J Kelly, ‘How ambush marketing ambushed sport’, 17 June 2010, <http://n e ws.bbc.c o .uk/1/

hi/8743881.stm>.54 M Davis, ‘Games’ eagle-eyed sponsor police’, BBC

online, 14 August 2004; L Smith-Spark, ‘Sponsor police guard World Cup brands’, BBC online, 20 June 2006.

55 LL Bean, ‘Ambush Marketing: Sports Sponsorship Confusion and the Lanham Act’ (1995) 75 Boston

University LR 1099, 1101.56 See T Hagon, ‘“Holden-burg” to hit the air’, Sydney Morning Herald, 2 August 2006.57 A Fraser (Minister for Local Government, Planning and Sport), ‘Blimps Get the Boot: Fraser’, Queensland

Government Press Release, 26 October 2006.58 G Roughley, ‘The Open 2009: The first round—as it happened’ <http://ww w .gua r dian.c o .uk/spo r t/2009/

jul/16/the-open-2009-turnberry-live>, at 12.11pm.59 Utynam’s Heirs, ‘Oval Ambush’ (2005) 153 Managing Intellectual Property 64.

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Displaying logo at press-conference or during the event

Linford Christie wore Puma contact lenses, which clearly showed up in all photographs, during a press conference at the

1996 Olympics.60

Bernard Hopkins tattooed the name Goldenpalace.com on his back so that it would be visible during a boxing match in September

2001.61

Distributing related marketing During the 1990 World Cup a competitor of the official sponsor, Mars, gave away free footballs using its own Italia

‘90 logo.62

Distributing free samples ofnon-sponsor’s branded products or giving out free unofficial programmes near the venue

Giving away tickets for the event as a prize

Organizing tangentially related programmes

Hats with the words ‘ACE’ were handed out to spectators at Wimbledon in 2001, on the off-chance that they would be worn

during the tournament.63 Similarly, at Wimbledon in 2004 Colgate handed out Palmolive deodorant branded water despite the official

water sponsor being Buxton.64

Philips ran a competition ‘Buy a Philips Audio System, win a ticket to the World Cup’ for the Cricket World Cup2003.65

The British Olympic Association has complained about giving away Olympic tickets on a number of occasions.66

Seagram’s ‘Send the Families’ campaign (where they paid to send 500 families of competitors to the 1988Olympics).67

Encouraging people to send texts to show support for theSouth African football team at World Cup 2010.68

During the 1992 Olympics, General Motors ran a promotion in which it gave away

golden-coloured Holden cars to Australian gold medal winners. Toyota was the motor vehicles

sponsor of the Australian team.69


hi/8743881.stm>61 S McKelvey, ‘Commercial Branding: The Final

Frontier or False Start for Athletes’ Use of Temporary Tattoos as Body Billboards’ 13 Journal of Legal Aspects Sport 1, 4 (2002–2003) (he was reportedly paid US$100,000, which the ambusher easily recouped through additional traffic on the site).

62 R Kelehar, ‘Ambush: The Soccer Sponsors Cry Foul’ (22 June 1990) Campaign 28.63 ‘Hats off at Wimbledon’, 28 September 2001, <http://ww w .spo r tbusiness.com>. 64 D Cushley, ‘Can You Trademark a Year?’ (2005/6) 183 Trademark World 14.65 See ICC Development (International) Ltd v Arvee Enterprises 2003 (26) PTC 245 (Del); also see ICC

Development (International) v Ever Green Service Station 2003 (26) PTC 228 (Del).

66 LOCOG ‘Information on London 2012’s UK Statutory Marketing Rights’ (April 2010), 22.67 T Meenagan, ‘Point of View: Ambush Marketing Immoral or Imaginative Practice’ (September 1994)

Journal of Advertising Research 77, 82.68 As occurred in Vodacom/MTN/16028, ASA South Africa, 15 October 2010.69 Senate Legal and Constitutional Reference Committee 1995, Cashing in on the Sydney Olympics: Protecting

the Sydney Olympic Games from Ambush Marketing, SLCRC, Canberra, [3.13].

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F. Types of Ambush Marketing


Using allied links to make associations with an event

Drawing allusions to an event without mentioning it

Planting people at an event with signs for them to hold up to be caught on camera (commonly called ‘messages on

hold’73); now includes moresubtle ideas

Producing ‘unofficial’ merchandising incorporating protected symbols.

Using a protected symbol to advertise your own product or to draw allusions

Registering domain names which relate to the event

Steinlager was the sponsor of the 1991 Rugby World Cup. Foster’s ran a campaign ‘Swing Low, Sweet Carry-Out’ to take advantage of the England theme ‘Swing Low, Sweet

Chariot’.70

Qantas Airlines, not the sponsor of the 2000 Olympics, used the slogan ‘Spirit of Australia’ which coincidentally sounds like the Sydney 2000 Games slogan ‘Share

the spirit’.71

American Express ran ads claiming Americans do not need‘Visas’ to travel to Norway (for the Winter Olympics).72

This followed a similar campaign in relation to theBarcelona Games earlier that year.Messages on hold went to a West Coast Eagles (AussieRules) game and waved signs in front of the camera.74

The underwear manufacturer Dim Dim paid for a groupof women to attend games at the Rugby World Cup 2007. They proceeded to take their clothes off (whilst wearing the underwear). This attracted the attention of the cameramen and received significant

broadcast coverage.75

Bavaria beer ran a series of campaigns where people have attended sporting events wearing the colour orange. This most recently occurred at the World

Cup 2010.76

This is widespread and may amount to straightforward counterfeiting.

The branding of a gym

as an ‘Olympic gym’.77

Qantas’s ad ‘Australia Wide Olympic * Sale’

(with a * followed by a disclaimer at the bottom).78

This is a widespread practice, for examples, see section on domain names.79

(cont.)


Review 103, 107.71 M Davis, ‘Games’ eagle-eyed sponsor police’, BBC online, 14 August 2004. <http://n e ws.bbc.c o .uk/1/

hi/world/europe/3565616.stm>.72 M Davis, ‘Games’ eagle-eyed sponsor police’, BBC online, 14 August 2004 <http://n e ws.bbc.c o .uk/1/hi/

world/europe/3565616.stm>.73 Named after the Kym Illman’s company which pioneered this form of advertising.74 A Swinburn, ‘Ambush marketing under fire’, B & T Weekly, 19 December 2005.75 See K Lines and J Heshka, ‘Ambush Marketing: FIFA’s Rights Protection Programme’ World Sports Law

Report (August 2010) (which includes details of links to the relevant footage).


hi/8743881.stm>.77 LOCOG, ‘London 2012’s UK statutory marketing rights’ (April 2010), [2.7].78 See Qantas ad, The Age, 29 September 2000 (there was no protection for expressions as such at the time

in Australia).79 See para 4.116 et seq.

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Running an advertising campaign using the same themes.

Engaging in widespread unrelated advertising campaign to increase‘share of voice’.82

In 1998 Nike ran an advertising campaign using Ronaldo (the most famous footballer in the world at that time) fooling about with a ball on a beach. The campaign was run

during the 1998 World Cup.80

Similarly, in 2010 Nike ran the ‘Write the Future’ campaign where a video, available on YouTube and similar sites, involved leading footballers taking part in a fictionalfootball tournament. The campaign was so successful that Nike was initially the brand most linked with the tournament despite

not being an official sponsor.81

Not ambush marketing.

80 H Dauncey and G Hare, France and the 1998 World Cup: The National Impact of a World Sporting Event

(Frank Cass, 1999), 12681 K Lines and J Heshka, ‘Ambush Marketing: FIFA’s Rights Protection Programme’ World Sports Law

Report August 2010 (which includes details of links to the relevant footage).82 This is suggested to be a form of ambush marketing by T Meenagan, ‘Point of View: Ambush Marketing

Immoral or Imaginative Practice’ (September 1994) Journal of Advertising Research 77, 81.

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