Ambush Marketing: From Ripping Rivals Up to Subtle Strategy

Introduction

When asked to visualize a cricket, football, basketball, or any major sporting event, one cannot do so without recollecting the bold advertisements displayed all over the players' shirts, the field, and the massive TV screen in the stadium. In 1996, Coke substantially invested in procuring the right to the title "The Official Sponsor of the World Cup". Its competitor, Pepsi, triggered by this, launched its advertising campaign, its tagline being, "Nothing official about it". The public lauded this advertisement, and the official sponsor, Coke, lost out. The subtle, snarky response Pepsi made to Coke's title hijacked the consumer's mind.

What is Ambush Marketing?

Ambush or Parasitic Marketing, or Event Piracy is the unauthorized usage of the goodwill or exposure of another's event. It is a form of free-riding, where a brand looks to create an association with an event in the consumer's mind or share a part of the event's media attention without paying for the right to do so freely. In the Coke and Pepsi example, Pepsi, in an unauthorized manner, ambushed Coke's paid-for, official sponsorship.

There are three main classes of ambushing:

I. Direct Ambushing: When a brand intentionally tries to create an illusion of being associated with an event it is not a sponsor of, and nor it has not paid to use the right it is free-riding. The purpose of this is to either attack its rivals, (the official sponsors) or to garner public attention from the event.

There are four types within this class:

i. Predatory Ambushing: A purposeful attack on a competitor's official sponsorship to gain some publicity from the event and confuse customers on the brand identity of the official sponsor.

ii. Coattail Ambushing: A brand's attempt to directly link itself with an event legitimately, perhaps through an existing athlete or a team sponsorship. The brand uses any other tactic apart from becoming an official sponsor of the event.

iii. Property Infringement: Knowingly using protected IP, including words, symbols, and logos related to an event, without consent.

iv. Self-Ambushing: An official sponsor's marketing actions go beyond the sponsorship contract's contents.

II. Indirect Ambushing: Intentional association of a brand with an event through indirect reference or subtle suggestion.

The following types fall under this category:

i. Associative Ambushing: Using images or words to influence consumers to infer a connection between the brand and the event.

ii. Distractive Ambushing: Promotion of a brand near an event without referring to its promotional campaign to induce a connection between the brand and the event in the public mind.

iii. Values Ambushing: Use of the event's central values to imply an association between the brand and the event. Example: Event A is raising money to help stray dogs. Although not an official sponsor, Brand B begins promoting the importance of taking care of stray dogs in its advertisements. Brand B is ambushing Event A's values.

iv. Insurgent Ambushing: The usage of surprise pop-up promotions in the vicinity of an event.

v. Parallel Property Ambushing: The sponsorship of an event in the minds of consumers, related to the target event and competes with it for publicity.

III. Incidental Ambushing: This category includes consumers' assumptions of an association between the brand and the event, but without the brand's intention. This is harmful to official sponsors because it will lead to clutter in the event market.

It further includes the following types:

i. Unintentional Ambushing: A typical example of this is the media mentioning any brand of a piece of clothing or equipment an athlete uses or any company that is serving the event that may cause consumers to link the two, leading them to believe that the brand or company is an official sponsor of the event.

ii. Saturation Ambushing: Ambushers employ more rigorous advertising and marketing around the time of an event but do not refer to the event itself and do not purposefully create any connection between the event and the brand, but have the intention to attract attention from people interested in the event.

How does the Indian IP regime tackle the problem of Ambush Marketing?

While the efficiency of the current Indian IP regime to tackle ambush marketing is debatable, the trademark law and, to some degree, the copyright law have noteworthy provisions. According to the Trademarks Act 1999, if an event organizer has a registered trademark and a non-official sponsor utilizes that same mark or any similar or any deceptively similar mark, the event organizer can claim trademark infringement under Section 29 of the Act.

Consider the case of Arsenal Football Club v. Matthew Reed [2003] EWCA Civ 696. The Club sued Reed for the unauthorized sale of Club merchandise without a license from the Club. The merchandise displayed the Club logo, which was protected. Reed claimed that his intention was not to use the logo as a trademark but rather as a "badge of allegiance". However, the Court ruled that it was indeed a case of infringement and ruled in favor of Arsenal Football Club. Certain ambush-marketing practices are deemed to be a prima-facie infringement and can be fought off using a beneficial combination of copyright and trademark laws. The third remedy that the aggrieved party may use is the common law remedy of passing-off.

How problematic is Ambush Marketing? - Considering different perspectives:

Through a narrow lens, ambush marketing goes against all principles of intellectual property and trade law, thereby giving the official sponsor of an event a cause to take action against such infringement. However, ambush marketing does not always include infringement and misrepresentation in a broader lens when it boils down to sponsorships. Some activities that fall under the broader lens may include: sponsoring the stadium, a radio broadcast, a team or an athlete, or even hosting contests and creating promotion tickets.

Labeling such activities as ambush marketing would automatically call them detrimental or unethical, to the extent that the State feels the need to intervene when they are not technically wrong. Such deciding criteria need to be drafted at the level of the legislature to provide adequate clarity on the degree of unethicality of the activities that fall under the ambit of ambush marketing. Ambush marketing can be an alternative to traditional sponsorships depending on each brand's budget, brand images, and interests.

In an analysis of the trends in ambush marketing, there is a palpable shift in paradigms; earlier, coattail and predatory ambushing tactics were widely used, but in recent times are witness to marketing in association with multiple brands and overall capitalization from the event's value. Through the 80s and the 90s, there appears to have been a competitive relationship between brands, with direct attacks on rival sponsorships. Today, with the massive increase in sponsorship value over time, a more subtle approach defines ambush marketing. Brands increasingly focus on gaining and accumulating benefits from what seems to be an implied connection with an event instead of tearing rivals apart. There are, however, exceptions to every scenario, and the result of the newer, more subtle method is still taking the spotlight away from its rightful owner, thereby affecting official sponsors' activities with confusion and distraction for its key players.

Trends in Indian Ambush-Marketing Cases:

In the case of ICC Development International Ltd v. Arvee Enterprises and Anr., 2003 VII AD Delhi 405, the International Cricket Council sued for an injunction arguing that the members of the ICC owned and controlled all commercial rights concerning media, sponsorship and other IPRs concerning ICC events. ICC organized the ICC World Cup in 2003 and had created a distinct logo and a mascot for the event. Due to the publicized nature of the logo and the mascot, the public began associating them with ICC. ICC had also filed many applications for trademark registration in various countries. In India, it had filed for the registration of the words "ICC Cricket World Cup South Africa 2003" and the logo and the mascot named "Dazzler". The official sponsors of the World Cup did not include Arvee. Arvee was the authorized dealer for the sale and service of electronics produced by Arvee and the second defendant - Philips India Ltd. They misrepresented their connection with the World Cup by advertising the logo through media to derive publicity benefits in an unauthorized manner seeking, thereby, to be free-riders on the goodwill of the ICC World Cup event.

The Court held that the use of the logo by Arvee did not constitute misuse, and thus it was not a plausible assumption that Arvee was affiliated with the official sponsors of the ICC World Cup. On the other hand, in the case of ICC Development v. EGSS, 2003 IIAD Delhi 707, ICC was granted an injunction against the misuse of the ICC logo by EGSS since the logo was registered under the Indian Copyright Act as an artistic work.

The ambiguity in the verdicts of several cases similar to the two above indicates that the current system of ambush marketing IP is very meager, and there is thus a necessity for ambush marketing law in India.

Conclusion:

Ambush marketing, while essentially unethical because of the feeding-off of official sponsors by brands unwilling to break the bank for the fees that come along with the title, is turning into an attractive marketing option because it has turned out to be a modest way to garner publicity without having to invest too much into advertising. The problem arises when these free-riding brands are not kept in check, which sets a bad precedent for other immoral practices leading to a diminishing incentive for other official sponsors to pay the requisite fee to obtain the title.

Recent Indian wins at the Tokyo Olympics have served “moment marketing” opportunities to brands on a silver platter. As the name suggests, moment marketing is when companies advertise off of a celebrity’s spotlight to gain publicity. The sports marketing firm that represents two-time Olympic medallist P. V. Sindhu has made it a policy to discourage usage of her name and pictures in marketing efforts without her permission. This development has brought up an onslaught of new marketing ethics issues.

While ambush marketing cannot merely be viewed as an opportunistic strategy, it should be recognised in law to turn it into a tool to empower aggrieved parties to seek respite under the codified statute to bring about effective legal action against detrimental users of this technique.

SOURCES:

1. Ambush Marketing - The Problem and the Projected Solutions vis-a-vis Intellectual Property Law - Global Perspective by Sudipta Bhattacharjee from the Journal of Intellectual Property Rights, Vol. 8, September 2003, pages 375-388.

2. Ambush Marketing and the Mega-Event Monopoly: How Laws are Abused to Protect Commercial Rights to Major Sporting Events by Andre M. Louw.

3. Sudipta Bhattacharjee & Ganesh Rao (2006) Tackling Ambush Marketing: The Need for Regulation and Analyzing the Present Legislative and Contractual Efforts, Sport in Society, 9:1, 128-149, DOI: 10.1080/17430430500355865.