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Navigating legal boundaries and protecting sponsorship investments

The Olympics, a pinnacle of sporting excellence and global unity, also serves as a battleground for marketing strategies.  Amidst the dazzling feats of athleticism and national pride, corporations vie for the attention of billions worldwide.  However, not all marketing tactics are fair game.  Ambush marketing, has come to the fore as a contentious issue, testing the limits of intellectual property and advertising laws designed to protect official sponsors.

What is ambush marketing?

Ambush marketing can be defined as the deliberate attempt by a company to associate itself indirectly with a particular event, such as the Olympics, without paying sponsorship fees.  Unlike legitimate sponsorship, where companies pay substantial sums for exclusive rights to associate their brand with the event, ambush marketing seeks to reap the benefits of association without bearing the financial burden.

Ambush marketing tactics can range from subtle to overt.  Examples include using Olympic symbols or phrases (such as the Olympic rings or “Olympics”) in advertising campaigns, sponsoring athletes who are competing in the Games but not the Olympics, or launching marketing campaigns that coincide with the event to capitalise on the public’s attention.

Legal framework and challenges

Navigating the legal landscape of ambush marketing requires a nuanced understanding of intellectual property rights, advertising regulations, and the specific laws governing major sporting events like the Olympics.  Key legal principles that come into play include:

1. Trade marks: The Olympic symbols, including the five interlocking rings and related terminology, are protected trade marks.  Unauthorised use of these trade marks in a way that suggests an association with the Olympics can lead to trade mark infringement claims.
2. Ambush Marketing Legislation: Some countries have enacted specific legislation to combat ambush marketing during major sporting events.  g. section 33 of the London Olympic Games and Paralympic Games Act 2006 in the UK provided statutory protection against unauthorised association with the London 2012 Olympics.
3. Contractual Obligations: Official sponsors enter into detailed agreements with event organisers that outline exclusivity rights and restrictions on marketing activities. These contracts often include clauses prohibiting athletes and attendees from promoting non-sponsor brands within designated event zones.
4. Olympic Symbols: The Olympic Insignia Protection Act 1987 (OIP Act), the Olympic Insignia Regulations 1993 and the Major Sporting Events (Indicia and Images) Protection Act 2014 (if amended to include the Brisbane 2032 games as a Major Sporting Event) work together to protect Olympic symbols, mottos and expressions so that only authorised entities can use them in a commercial context.

Case studies in ambush marketing

Numerous high-profile cases illustrate the complexities and legal implications of ambush marketing at the Olympics:

1. Bavaria Beer at the 2010 FIFA World Cup: During the World Cup held in South Africa, Dutch brewery Bavaria orchestrated an ambush marketing campaign by having 36 women wearing orange-coloured dresses in an attempt to promote the brand.  This stunt led to the arrest of two Dutch women for allegedly promoting an unauthorised brand.
2. Nike and the 2012 London Olympics: Nike, a major competitor to official sponsor Adidas, launched an advertising campaign featuring non-sponsor athletes wearing gear bearing the Union Jack, coinciding with the London Olympics.  While Nike carefully navigated legal boundaries, the campaign sparked controversy over implied associations with the event.  In fact, the success of Nike’s “Find your greatness” campaign was so effective that 37% of people recognised Nike as an Olympic sponsor compared to Adidas at 24%.
3. Tokyo 2020 Olympics: In Tokyo, we saw the transition to Social Ambush – where non-sponsor brands looking to make connections with athletes competing in the Games did so via a carefully crafted X, Instagram, or Tik Tok post.  The marked decrease in ambush marketing at the Tokyo Games was assisted by the inability of the general public to attend the Games.

It will be interesting to see how non-sponsors attempt to associate their brands with Paris 2024, and what steps will be taken to prevent them.

Legal strategies for event organisers and sponsors

To mitigate the risks associated with ambush marketing and protect sponsorship investments, event organisers and sponsors can adopt several legal strategies:

1. Proactive Brand Protection: Register trademarks and logos associated with the event well in advance to establish legal grounds for enforcement against unauthorised use.  We have seen this done by the AOC in relation to Brisbane 2Q32, and expect further protection to be secured over the coming 8 years, especially in relation to the mascot once it is created.
2. Clear Advertising Guidelines: Communicate clear advertising guidelines to sponsors, athletes, and other stakeholders to prevent inadvertent violations and ensure compliance with contractual obligations.
3. Vigilant Monitoring and Enforcement: Monitor advertising and promotional activities closely during the event period to detect and respond swiftly to potential ambush marketing campaigns.
4. Legislative Support: Advocate for legislative measures that strengthen protections against ambush marketing and deter unauthorised associations with major sporting events.  We have a strong history of this in Australia and it is expected further legislation will be implemented in the lead up to 2Q32.

The future of ambush marketing

As sporting events like the Olympics continue to attract global audiences and commercial interest, the battle against ambush marketing is likely to intensify.  Advances in digital marketing and social media present new challenges and opportunities for both marketers and regulators. Striking a balance between protecting intellectual property rights and fostering innovation in marketing remains a key challenge for legal frameworks worldwide.

Ambush marketing at the Olympics is a multifaceted issue that requires careful navigation of legal boundaries and proactive enforcement strategies. By understanding the nuances of intellectual property law, adhering to contractual obligations, and advocating for robust legislative protections, event organisers and sponsors can safeguard their investments and preserve the integrity of the Olympic Games as a platform for sporting excellence and global unity.

Need further advice?

If you require further guidance around legal boundaries and protecting your sponsorship investments, contact our Intellectual Property team at Macpherson Kelley.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.