As the summer of sport approaches, brands are gearing up for a golden opportunity to engage with massive audiences during the UEFA European Football Championships (the Euros) in Germany and the Olympic and Paralympic Games in Paris.
However, with official sponsorship fees reportedly hitting the tens of millions, it's no surprise that event organisers (UEFA and the IOC) are keen to minimise the opportunity for such brands to take advantage via 'ambush marketing'.
In this article, we dissect the legal risks associated with ambush marketing and provide guidance for brands to safely engage with the excitement of the upcoming sporting events.
What is ambush marketing?
Ambush marketing refers to a strategy where a brand associates itself with a major event, such as the Olympics or the Euros, without obtaining permission or officially sponsoring the event. The aim is to gain exposure and leverage the public attention surrounding the event without incurring the cost of an official association.
Ambush marketing can take various forms, from adverts suggesting an official connection to the event to subtle product placement at venues and using dedicated hashtags on social media. Examples include Pringles' 'Pringoooals' campaign around the Euros 2020 and Danish footballer Nicklas Bendtner's fine by UEFA for revealing his Paddy Power-branded 'lucky' underwear at the Euros 2012.
Whilst such tactics may be seen as examples of savvy marketing, the risk it poses to the integrity of official sponsorships means event organisers are increasingly willing to take action, and brands must be careful to avoid overstepping the line.
How does the law protect against ambush marketing?
The practice of ambush marketing can be tackled through a combination of legal measures, including intellectual property rights, unfair competition laws, and consumer protection regulation. It is within this framework that event organisers and official sponsors must operate.
Passing off and unfair competition
In the UK, event organisers could seek to rely upon passing off to argue that a brand has misrepresented an association with the event, potentially misleading consumers. However, the burden of proof is substantial, as it requires demonstrating that the deception has led to consumer confusion which has damaged the event/the organiser's goodwill, making it a challenging route for redress.
In certain European jurisdictions, laws against unfair competition provide a more accessible means of legal recourse. These laws address the issue of gaining an undue advantage through deceptive or misleading trade practices and may be used when a brand's actions suggest an unauthorised association with an event.
Brands should also take caution when deciding whether to feature any individual athletes or players within their advertising – just like with an event, brands should not suggest that they have an official partnership or collaboration with those individuals.
Trade marks
Event organisers typically hold registered trade marks for event names, logos, mascots, and slogans. Unauthorised use of these trade marks may constitute infringement, providing a basis for legal action. The IOC and UEFA have extensive trade mark portfolios that are vigorously enforced to prevent unlicensed use.
For example, the IOC has registrations for, among other things, THE OLYMPICS, OLYMPIA, OLYMPIAD, the Olympic rings and various PARIS 2024 logos. Individual teams will also hold their own registrations, such as TEAM GB and its logo, both of which are registered UK trade marks.
UEFA meanwhile has protection for marks such as EURO 2024, THE EUROS, BERLIN 2024, the tournament logo and various representations of the trophy. Each football federation will also own registrations for their national team's logo.
Copyright
Copyright law protects the artistic and creative aspects of major events, such as logos, slogans, mascots, photographs, and broadcast content. Event organisers can enforce them against unauthorised reproduction and distribution.
Advertising Codes
The Advertising Standards Authority (ASA) in the UK, along with similar regulatory bodies in Europe, oversees advertising practices to ensure honesty and prevent misleading advertising. The use of names or images of individuals, such as athletes, without consent, could breach these advertising codes if perceived as a misleading endorsement. Brands should also be careful not to include offensive national or cultural stereotypes in ads, and comply with the rules relating to e.g., gambling or alcohol advertising.
The Committee of Advertising Practice (CAP) in the UK recently published guidance for advertisers on how to remain complaint with the ASA rules ahead of EURO 2024.
Practical tips for brands
- Be aware of the risk of IP infringement, even with seemingly generic terms such as 'The Euros'. Review all the guidance issued by the IOC, UEFA and local authorities to ensure you know the limits. Do not assume particular words are free to use and always take legal advice before launching any specific campaigns.
- Consider the risks around social media. All forms of advertising and content can be caught, and even reposting content related to an event, hashtags and congratulatory messages can attract unwelcome backlash.
- Take legal advice on specific campaigns. With a little artistry, subtle references to an event or using parody may be acceptable provided it is carefully crafted.
- Be creative with other ways to capitalise on the hype, such as Oreo's tweet about dunking in the dark during the 2013 Superbowl power cut.
- Have an 'out'. Ensure adverts can be pulled if action is threatened, as this may avoid the significant cost and time incurred in litigation.
- Do not feature young athletes or players in gambling ads. With so many young sportspeople in the spotlight at Euro 2024 and the Olympics/Paralympics, it’s important for brands to remember that the ASA advertising codes prohibit anyone under the age of 25 from playing a central role in gambling ads. Furthermore, nothing in the ads themselves, including the theme or those appearing in the ad can have a strong appeal to U-18’s.