Introduction:
Ambush marketing is a concept where a brand advertises and capitalize through an event, generally a sports event, by associating with the event while refraining from not being the event’s official sponsor. It refers to the company’s attempt to capitalize on the popularity of a well-known property or event without consent or authorization of the necessary parties.[1]
It is a marketing strategy in which a competing brand associates itself with major sporting events without paying sponsorship fees.[2] This is indirect sponsorship and it is a way to deceive the consumers into believing that there is an official association. Ambush marketers do not use the trademarks of third parties but rather creatively allude to a sporting event and use their own trademarks to suggest a connection or affiliation with that sporting event.[3]
The best example of ambush marketing is the Rio Olympics in 2016. Puma was not an official sponsor in Rio Olympic, but they sponsored Usain Bolt. He used a picture of him holding golden Puma shoes after winning gold medals. He also filled the social media with the post “When you are @Usain Bolt, you are #ForeverFaster”. This tied Usain Bolt’s gold medal performance with Puma’s Forever Faster slogan which gave puma a head start in sales.[4]
Ambush Marketing and IPR
Ambush marketing infringes the intellectual property rights. In the absence of any exclusive legislations prohibiting ambush marketing as in India, the official sponsors or the event organizers may seek protection under the Trade Marks Act 1999, the Copyright Act 1957 or under the tort of Passing Off.[5]
With regard to copyright infringement, there is commercial use of rights, benefits, and privileges without authorization. Brands try to associate themselves with the event without the license by use of words, symbols, pictorials which are similar to the event. They try to produce and sell counterfeit merchandise, unauthorized use of athlete appearances, images or likeness for advertising purposes during the event.
In the trademark infringement, the official event organizer has registered trademark. If the registered trademark is used by any unofficial sponsor or ambush marketer, then this is a trademark infringement. The event manager can file proceedings for trademark infringement.
There is another intellectual property right infringement which is known as Passing Off. Passing off means when a third party or unofficial sponsor misrepresents by the way of its marketing by making people believe that there is a connection with the third party and event organizer. It often leads to confusion resulting in event organizer suffering damages.
Need for Ambush Marketing Legislation
The practice of ambush marketing is an unethical business practice[6]. There is a need to have legislation to prevent ambush marketing. There are provisions under trademarks act, competition law but they are not enough and sufficient for each and every situation. This becomes difficult for the aggrieved party to file a suit or take action against the ambush marketers.[7] Remedy against ambushers is available under the intellectual property laws in India however only in a very limited sense. There is redress available under the Trademarks Act, 1999, the Copyright Act, 1957, the Emblems and Names Act, 1950, and the common law notion of passing off but its effectiveness is debatable.[8]
In the case of ICC Development International Ltd (ICCDIL) v Arvee[9], there was a dispute regarding contest organized by Arvee to win tickets to the World Cup. Defendants used the phrase “Philips: Diwali Manao World Cup Jao” and “Buy a Philips Audio Systems win a ticket to the World Cup”, inserting a pictorial representation of a ticket with an imaginary seat and gate number saying “Cricket World Cup 2003”, to publicize the contest, which was similar to the words “ICC Cricket World Cup South Africa 2003” Suit was filed in Delhi High Court for temporary injunction restraining the defendants from publishing the advertisement associating themselves with the Plaintiff and the Cricket World Cup in any manner whatsoever. ICC had contended passing off and ambush marketing by the defendants but could not succeed as the Court held that the logo of ICC hadn’t been misused. It further held that the plaintiff could not prove that there was a “likelihood of confusion” in the public mind that the defendants were sponsors or licenses of the world cup.
In the case of ICC Development v. Evergreen Service Station[10], the Delhi High Court granted an injunction to prevent the defendants from using the logo of “ICC World Cup 2003”. This logo was held to be an artistic work under the Indian Copyright Act and protected under Section 2 (c) of the Copyright Act, 1957.[11]
There is a dire need of specific legislation for ambush marketing and commercial sponsorship in order to protect the interest of the trade There is a dire need for specific legislation for ambush marketing and commercial sponsorship in order to protect the interest of the trade and trademarks of international sports organizations. While it may be argued that it is each corporation’s free right to advertise during such international events which involve national pride, it is unjust to a corporation that enters into agreements with the event organizers and pays millions to acquire exclusive rights to advertise on the one hand and corporations that have not paid a single penny also enjoy the same benefits on the other hand. It is only fair to put a cost on acquiring a right of association especially when the benefits accrued far exceed the initial cost.[12]
Conclusion
Ambush marketing is the most controversial marketing strategies. Ambush marketers often defend themselves by putting disclaimers and Ambush marketing is the most controversial marketing strategy. Ambush marketers often defend themselves by putting disclaimers and having marketing strategies. They infringe the IPR Protection. They are many laws that can protect the event organizers and official sponsors but there lacks the practicality in those laws. There is a need to have a legislation to protect the ambush marketing and commercial sponsorship. Ambush marketing is a cheap way of attracting customers by way of their marketing strategies. This leads to the loss suffered by the official sponsors who invests a lot of money in the event. Ambush marketing is unethical. There must be zero-tolerance towards ambush marketing and there is a need to create attention to this practice so that unofficial sponsors or third parties have refrained from such a practice. Legislation should be enacted to prevent this unfair trade practice.
References:
[1] Sandler D M & Shani D, Olympic sponsorship v. ‘ambush’ marketing: Who gets the gold? Journal of Advertising Research, 29 (4) (1989) 9, 11.
[2] Macmillan English Dictionary, http://www.macmillandictionary.com/spellcheck/ british/?q=ambush+marketing
(11 April 2010).
[3] Miller Nancy A, Ambush marketing and the 2010 Vancouver-Whistler Olympic Games: A prospective view,
http://www.imakenews.com/iln/e_article000867643.cfm (12 April 2010).
[4] Joscha Thieringer, Usain bolt and Pama outsmart the IOC with a pair of golden shoes, ISPO (Nov. 01, 2019, 11:30 AM), http://www.ispo.com/en/companies/id_78704878/usain-bolt-and-puma-outsmart-the-ioc-ambush-marketing.html?amp.
[5] Sampreeta SK, Ambush Marketing and Commercial Sponsorship, May 22, 2020, Ipleaders, https://blog.ipleaders.in/ambush-marketing-and-commercial-sponsorship/#_edn3
[6] Bhattacharjee Sudipta, Ambush marketing – The problem and the projected solutions vis-à-vis intellectual property law – A global perspective, Journal of Intellectual Property Rights, 8(5) (2003) 375-388 http://www.bonham.com/inside/glossary.html.
[7] Shivang Mehrotra, Tanya Gupta, Ambush Marketing: A Sport of Underdogs, Law Journals, Volume 2, Issue 1.
[8] Id.
[9] ICC Development International Ltd (ICCDIL) v. Arvee (2003), 26 PTC 245(Del).
[10] ICC Development v. Evergreen Service Station (2003) 26 PTC 228 (Del.)
[11] Manish Tiwari, Radhika Bhargava, Protect the Sports; Protect the Sponsors: Need for an Action against Ambush Marketing, India Law Journal, 2013, http://www.indialawjournal.org/ archives/volume4/issue_4/article_5.html.
[12] Rukmani Seth, Ambush Marketing-Need for Legislation in India, Journal of Intellectual Property Rights, Vol15, November 2010, pp 455-463.
0 Comments