The game's up

The FIFA World Cup match between the Netherlands and Denmark in Johannesburg on 14 June saw a particularly creative display of 'ambush marketing' when stewards ejected 36 female Dutch supporters all dressed in orange dresses. All were accused of 'ambushing the event on behalf of a Dutch brewer and detracting from the authorised beer sponsor of the tournament, Budweiser.

The media and revenue-generating opportunities that international sports events such as the World Cup provide for brands are second to none. Official sponsors face strict licensing arrangements, a stringent selection process to ensure that they are 'on message' with the ethos of the event and substantial sponsorship fees. Therefore, it is unsurprising that other businesses employ creative 'ambush marketing' strategies and seek to associate themselves with an event without authorisation from its organisers. The advent of the 2012 Olympic Games and London's bid to host the 2018 FIFA World Cup have put these strategies under increased scrutiny and there is now an expanding armoury of measures available to tackle them.

Ambush strategies

A common strategy of ambush marketers is targeting event stadia to create the impression that they are associated with the event being held there. This is usually achieved either by encouraging spectators to wear branded garments, such as in the example above, or by sponsoring individual event participants, such as when Usain Bolt held his Puma track shoes up after victories in the 100m, 200m and 4x100m events at the 2008 Beijing Olympics where Adidas was the main sportswear sponsor.

Because of increased security around events and restrictions in athlete/team participation agreements, it has become more common for ambush marketers to seek to exploit the perimeters of an event venue where event organisers have much less control either by handing out branded merchandise, buying up advertising space in surrounding areas, covering nearby buildings with branding or operating promotional vehicles close to the venue.

Television, radio, the internet and print advertising are also used to suggest an association with an event and/or to overshadow a competitor's involvement in it. For example, Quantas Airlines used the slogan 'The Spirit of Australia' during the 2000 Sydney Olympic Games when the official Olympic slogan was 'Share the Spirit' '“ the official sponsor was Ansett Air.

There are a number of measures available for event organisers and official sponsors to tackle this: intellectual property actions; property and contractual rights; and statutory rights under event-specific legislation.

Intellectual property

An event's brand or logo may be registered under the Trademark Act 1994. This will provide the event organiser with exclusive rights over its use and the opportunity to take action against a third party which uses the mark or a similar one in its advertising.

Alternatively, logos, mascots and other media connected to an event may be registered as designs or, if sufficiently original, attract copyright, giving rise to a copyright infringement action if they are reproduced without consent. For example, FIFA would have been unable to protect a well-known song such as Nessun Dorma when used for their 1990 World Cup tournament, but, if a new song is created for an event, copyright could potentially be used to prevent others using it or anything similar.

Where intellectual property is not registered, an action may be available under the tort of passing off if an event organiser can show it has suffered damage as a result of the ambush marketer having made a misrepresentation to consumers. The misrepresentation may be express or implied and must confuse or deceive the public or be likely to do so on the balance of probabilities; for example if an ambush marketer falsely represents that certain goods are associated with the event.

However, successful actions for passing off are rare in the ambush marketing arena, largely because of the evidential burden involved. This has been exacerbated by the recent tactic of claiming to be an event's 'unofficial sponsor'. Technically, by making this claim, the ambush marketer can argue it is not misrepresenting its association with the event and therefore the passing off criteria are not satisfied. This was the case in Arsenal v Reed [2003] EWCA Civ 696, which involved various proceedings by Arsenal Football Club, including an action for passing off. Reed had sold goods bearing the club's registered trademarks outside the stadium but had indicated by a disclaimer notice that these goods were not official Arsenal Football Club goods. For that reason, the action in passing off failed.

Where intellectual actions are successful, the main remedy available to an event organiser is damages. However, it may be preferable for event organisers to instead seek an injunction to prevent a reoccurrence together with the threat of committal proceedings. Another potential option is the use of an interim injunction against persons unknown. Although uncommon in English law, such an injunction was granted in the high-profile case of Bloomsbury Publishing Ltd & Another v News Group Newspapers Ltd & Others [2003] EWHC 1205 (Ch) to prevent illicit copies of the fifth Harry Potter book being published before the official publication date; hence they have also become known as 'Harry Potter injunctions'. However, in other jurisdictions such as Canada, injunctions against persons unknown have been granted around sports events to prevent the sale of counterfeit goods.

Property rights

When an event organiser has control over the space above and area surrounding a venue, property rights, including the law of trespass, can be used to thwart ambush marketing. Opportunities for ambushing the venue perimeters can be limited by restricting access to the airspace above it and by controlling advertising space in its surrounding areas. This is a measure favoured by the London Organising Committee of the Olympic Games (LOCOG) which has already entered into option agreements with certain advertising companies, enabling them to offer official sponsors a first right of refusal on outdoor advertising space in the vicinity of Olympic venues and throughout London.

Contractual restrictions

Event organisers may also use contractual terms to restrict athletes displaying logos of personal sponsors during their event, although recovery in these circumstances is unlikely to result in vast sums of damages and may also bring negative publicity.

Contractual terms may be more useful in agreements with broadcasters to restrict advertisements from competitors of official sponsors, so long as these restrictions are proportionate to their legitimate purpose and therefore not anti-competitive.

Alternatively, rights holders may also attempt to control access to their venues by imposing terms and conditions on official tickets. This measure will be used at the Olympic Games in London and has proved successful in past sporting events; it was more than likely instrumental in enabling stewards to eject the orange-dressed women referred to above.

Statutory rights under event-specific legislation

Specific statutory protection against these practices now forms part of successful government bids to host large-scale international events, most notably the FIFA World Cup tournament and the Olympic Games. The UK now has two core pieces of legislation: the Olympic Symbol (Protection) Act 1995 (as amended) (OSPA) and the London Olympic Games and Paralympic Games Act 2006 (the London Act) in addition to various Community and UK trademark registrations.

OSPA has protected the general use of the Olympic symbol, motto and certaindesignated words throughout the UK for over a decade. The London Act formed part of the British bid to host the 2012 Olympic Games in London and builds upon this protection. Closely modelled on Australia's legislation for the 2000 Olympic Games in Sydney, it aims to limit opportunities for those who are not official sponsors or partners to capitalise on the event by creating a new Paralympic Association Right and London Olympics Association Right (LOAR). The LOAR confers exclusive rights in relation to the use of a representation in a manner likely to suggest to the public that there is an association between the London Olympics and goods or services (or someone who provides them). Examples of 'use' which may infringe the LOAR have been published by LOCOG (see London 2012's UK Statutory Marketing Rights) and include use in advertising, on business papers, application of a representation to goods or packaging and supplying services under a sign including a representation,etc.

However, the context of the infringement is likely to be all important in terms of what action, if any, the committee will take. Any representation that can be said to be 'factually accurate' is likely to be regarded as one which 'accords with honest practices in industrial or commercial matters, and does not make promotional or other commercial use' or one which occurs 'in a context to which the London Olympics are substantively irrelevant' (schedule 4 of the London Act). The London Act also sets out a number of specific defences to infringement of the LOAR, such as where the use is of a previously registered trademark or has been made continuously since before the introduction of the LOAR.

One of the most controversial aspects of the London Act are certain 'protected expressions' which may come into play if LOCOG seeks to bring proceedings for an infringement. These are split into two groups and include expressions such as 'games', '2012', 'twenty twelve' and 'London', the use of which in certain combinations may be taken into account by a court when assessing whether a person has infringed LOAR (see part 3 of schedule 4). However, the final version of the London Act contains no presumption that use of these expressions will constitute an infringement and LOCOG has confirmed that, in this respect, the context is again all-important.

In addition to the LOAR, regulations are due to come into force in relation to advertising and street vending in the vicinity of London Olympic events (see sections 19 and 25) and the London Act makes touting of an 'Olympic ticket' a criminal offence (section 31).

An advantage of event-specific legislation is that the sanctions are stronger: under the London Act, infringement of the regulations relating to advertising or trading is a criminal offence punishable by a fine of up to £20,000 and ticket touting will be a criminal offence, the penalty for which is a fine not exceeding level 5 on the standard scale. Infringement of the LOAR is a civil right for which LOCOG may seek damages, an account of profits and/or an injunction.

Clearly, the most effective and reliable way to target ambush marketing is with event-specific legislation, although, as recent events in Johannesburg have shown, this is not always successful. In relation to the UK, although the London Act has been criticised for its restrictiveness, it remains to be seen whether it will achieve the desired level of protection for the event's official partners.