Introduction:
Ambush Marketing is a form of marketing in which the company takes advantage of the advertising provided by a major event to raise awareness of its product without contributing to or committing itself financially to sponsoring the event. Ambush Marketing is also referred to as parasite marketing as competing brands try to live off the prestige and popularity of the official sponsor brand.
Campaign at a significant event can take advantage of an international crowd that is also present at that event and the associated TV audience. This acts as an easy one-stop advertising strategy for companies in various countries to promote the brand. The brands also aim to undermine competing brands’ efforts by stealing the attention they have.[1]
Let’s just say that if Britannia sponsors a top-rated entertainment programme, say, Big Boss, for example. Now what Nestle is going to do is launch an extensive marketing campaign throughout the Big Boss advertising programme, and they will mainly expose their brand almost everywhere on the ground. Although the example speaks of entertainment, ambush marketing at sporting events is more prominent.
Now, what is happening here is that Britannia has sponsored the programme with a significant amount, but Nestle has used it to advertise their product without giving any sponsorship amount. This is ambush marketing.
Ambush Marketing, in which an event is officially sponsored by one brand, and another brand, usually involves a competing brand, tries to make use of the same event without paying the sponsorship. The ambusher seeks to misguide the public into the belief that they have an official partnership with the event. Ambush marketers do not use third-party trademarks, but instead, use their trademarks to establish a connection or involvement to an event.[2]
Why Ambush Marketing?
Laws in the field of ambush marketing are very general. Because the judicial process takes a lot of time and effort, only a few companies are filing lawsuits against ambush marketers. As sporting events usually take place for a short amount of time, it gets difficult for the event sponsors to exercise their legal remedies to restrict this activity in such a short time.
Ambush Marketing can change the perceptions of consumers. For example, take Kulula, a South African airline. In conjunction with the 2010 World Cup, Kulula started an ad campaign which was branded as ‘Unofficial National Carrier of You-Know-what,’ a reference to the upcoming football tournament.[3]
The FIFA, called for Kulula to immediately end the campaign and stated that the airline is trying to gain benefit for the Kulula brand through promotion by creating an unauthorised collaboration with the FIFA World Cup 2010.
Kulula shortly after the campaign had been pulled, announced that they would fly anyone named Sepp Blatter, former president of FIFA for free. Subsequently, the airline did find one.
This campaign is a prime example of how ambush marketing can benefit brands to develop themselves. The air travel industry has enormous competition, but with this incident, it has not only acquired significant publicity from Kulula’s ambush campaign, but it has also promoted the brand of Kulula airlines.
Companies always look for ways to immune themselves from future prosecution by making disclaimers that they are not the event’s official sponsors. There is also another reason since the case law concerning ambush marketing is scarce, and the ruling by the Court may turn in favour of the outsourcing company which can set a precedent for all other outsourcing companies and therefore the brands are reluctant to prosecute ambush companies.
In addition to these advantages, ambush marketing can also be very costly. This is the main disadvantage of ambush marketing.
Strategies used in Ambush Marketing: IP law
To understand the relation of ambush marketing and IP law, we need to examine the ambush marketing strategies used by various companies. In general, there are three types of ambush marketing:[4]
1. Direct Ambushing
As the word itself says, in direct ambushing, the brand intentionally ambushes with an event for which it has no rights. Attacking its competitor, the authorised brand of the event directly, it is called direct ambushing. In this form of ambushing, the exclusive rights of the aggrieved party are directly infringed.
2. Incidental Ambushing
Incidental ambushing refers to the attempt to distract the audiences through their advertisements. This can also take place when a non-sponsoring company is wrongly identified as the official sponsor because of its former partnership or due expectations of the event association.
3. Associative Ambushing
It means the intentional use, without any reference to the official sponsorship, of terms or images showing that the company has links with the event or program.
Ambush Marketing Laws
There is nearly no protection in India from the ambush marketing strategies used by various companies. In ICC Development International Ltd (ICCDIL) v Arvee[5] When the International Cricket Council sued Britannia during the World Cup, the Delhi High Court refused to accept ambush marketing as a plea for IP infringement. Arvee organised a contest to win tickets for the World Cup. The statement for releasing the competition was the same as the one registered by the ICC. Accordingly, Arvee was sued for passing and ambush marketing. The Court has not recognised the claim of ambush marketing, and the defendant’s actions were not considered exploitative. However, an injunction was issued against the defendant in the case of ICC Development v EGSS [6] only because the logo was supposed to be an artistic work under the Indian Copyright Law, for misuse of the logo on the World Cup only.
Therefore, it is evident that the existing IP laws are only partially suited to fighting ambush marketing and that new legislation in India for ambush marketing is seriously needed.
When we look at other country laws for ambush marketing, for example, England, in 2006 a provision on reducing ambush marketing in The London Olympic and Paralympic Games Act of 2001 was passed.[7] The law lays down the regulations for controlling publicity and trading in the vicinity of the Olympic venues to comply with the obligations imposed by the Inter-American Organization.[8]
The law states anyone who is not allowed to represent any person or company in association with the London Olympic Games will be in violation of the law and penalised by fine.
Available Remedies
We have seen the relationship between ambush marketing and IPR, i.e. ambush marketing often results in infringement of trademark, copyright and design rights. Some of the actions that can be taken against Ambush Marketers are:
1. Trademark Infringement
Suppose the party has a registered trademark and a non-authorized sponsor uses the registered trademark or similar mark. In that case, the party can start a trademark offence under Section 29 of the Trademarks act, 1999.[9]
2. Copyright Infringement
If the party concerned has a unique logo, quotation, symbol, or tagline concerning a particular event, the logo may be original enough to attract the copyright. If the logo, slogan, symbol or quotation is unauthorised, the aggravated party may commence proceedings under Section 51 of the Indian Copyright Act, 1957.[10]
3. Passing Off
The IP law allows parties to access a non-statutory mechanism. The party would have to show that a)the party has goodwill and a well-known reputation, b) the third party, through marketing, has misrepresented the public in such a way that they believe that it is in any way linked to the same person and c) the party has suffered or is likely to suffer damages by such marketing.[11]
Need of Relevant Legislation in India
Ambush marketing is a dubious and immoral strategy used by companies that do not want to pay colossal charges to sponsor a program. Brand managers are entirely ready to ambush the market because it is more of a modest way of attracting customers to the product without making huge investments.
If the ambush is allowed, then other official sponsors are demotivated to pay the enormous fees for sponsoring. Ambush marketing should not be seen merely as a duplicitous technology of marketing. It must be recognised by law that aggressive parties are empowered to bring legal action against those companies that practise ambush marketing.[12]
Conclusion
The laws relating to ambush marketing vary in a way which reflects the behaviour of various companies. Understandably, companies cannot control the situation. That’s why it is best if the companies obtain legal advice before the events.
In the absence of legislation, plaintiffs find it difficult to sue these companies who use ambush marketing strategies against them. It is essential that the existing legislation is drawn up in this respect or at least amended to include ambush marketing as an infringement.
In the absence of these provisions, it is recommended that event organising committees restrict ambush marketing by concluding private contracts with themselves and sponsors that comprise anti-ambush marketing clauses.[13]
References:
[1] Teresa Scassa, Ambush Marketing and the Right of Association: Clamping Down on References to That Big Event With All the Athletes in a Couple of Years, Research Gate (Aug. 2010, ), https://www.researchgate.net/publication/228279957_Ambush_Marketing_and_the_Right_of_Association_Clamping_Down_on_References_to_That_Big_Event_With_All_the_Athletes_in_a_Couple_of_Years.
[2] Griffith Hack, Ambush marketing and brand protection, Lexology (Sept. 27, 2018, ), https://www.lexology.com/library/.
[3] Dan Shewan, Ambush Marketing: What It Is & Why It Works, Wordstream (Mar. 5, 2020, ), https://www.wordstream.com/blog/ws/2018/04/04/ambush-marketing.
[4] Shrabani Rout, Ambush Marketing: Need For Legislation In India, Mondaq (Apr. 10, 2018, ), https://www.mondaq.com/india/trademark/690204/ambush-marketing-need-for-legislation-in-india.
[5] ICC Development International Ltd (ICCDIL) v Arvee, (2003) 26 PTC 245(DEL).
[6] ICC Development v EGSS, 2003 IIAD Delhi 707.
[7] Prashant R. Sharma, Ambush Marketing- The Concept, 2 RESEARCH HUB – International Multidisciplinary Research Journal 1, 6 (2015), http://oaji.net/articles/2015/1250-1428333804.pdf.
[8] Ibid;
[9] The Trade Marks Act, 1999, No. 14, Acts of Parliament, 1999.
[10] The Copyright (Amendment) Act, 1992, No. 13, Acts of Parliament, 1992.
[11] Shrabani Rout, Ambush Marketing: Need For Legislation In India, Mondaq (Apr. 10, 2018, ), https://www.mondaq.com/india/trademark/690204/ambush-marketing-need-for-legislation-in-india.
[12] Sudipta Bhatacharjee, Ambush Marketing-Problem and Projected Solutions- Global perspective, 8 Journal of Intellectual Property Rights 375, 376 (2003), http://docs.manupatra.in/newsline/articles/Upload/6AAFBC39-5A72-4AE1-A3CE-ABE95CB25A6C.pdf.
[13] Shrabani Rout, Ambush Marketing: Need For Legislation In India, Mondaq (Apr. 10, 2018, ), https://www.mondaq.com/india/trademark/690204/ambush-marketing-need-for-legislation-in-india.
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