Ambush marketing is popularly known as coat-tail marketing or predatory ambushing, which is a practice of hijacking or co-opting another enterpriser’s campaign to raise awareness of the ambushing company itself. It may occur by independent attacks in furtherance of attracting consumers’ attention in general or may occur concerning a particular event where there is no clear divide between the sponsors and non-sponsors. The main aim of ambush advertisers is to deceive the customers into believing that they have an official association with the event without using the trademarks of third parties. Another aim is to attack the other for stealing its spotlight and liquidate the capital, effort, and resources spent by it.
In simple words, it occurs when a particular brand owner makes an attempt to associate himself or herself with a particular event without paying for a sponsorship fee or tries to stifle the competition by intervening in the market practice adopted by that other. The same is generally observed during giant sports events like Super Bowls, IPL, World Cups, Common Wealth Games, etc., which can cause a hurdle for those who are the genuine sponsors of the said event. Consider the example of the Cricket World Cup where companies race for the tag of an ‘official sponsor,’ which costs them about $1.1 billion. PepsiCo got the deal of being a ‘Title Sponsor’ at a heavy bet of Rupees four hundred (400) crores for a five-year timeline. As mentioned above, it also may be generally deployed. An example of this is the battle between Audi and BMW for establishing billboard dominance. Here, Audi launched its A4 sedan while mocking BMW by saying, “Your move, BMW“ – to which BMW responded by erecting a billboard beside the BMW poster saying, ‘Checkmate,’ announcing its series of new sedans.
The question of ambush marketing as a legitimate marketing practice is often questioned since it impacts and creates negative tension while demotivating official sponsors by violating their rights. It is, therefore, not the best method of marketing to attract consumers through honest business practices.
The trademark legislations generally include a device, brand, heading, label, ticket, name, a combination of colors, etc., within the ambit of a ‘mark.’ The same should be capable of being represented graphically and be competent to distinguish the goods or services of one person from those of the others and include the shape of goods, their packaging and the combination of colors. It is for this reason that the law allows the companies sponsoring the event and the ‘game committees’ to register their labels or marks as trademarks.
The intermingling role of trademarks is very obvious when it comes to ambush marketing. It is because of the following two reasons:
Therefore, where anyone makes authorized use of a logo or mark, the question of Trademark Infringement automatically walks in.
The interplay of trademarks was visible in the Arsenal Football Club Plc vs. Matthew Reed case where Arsenal Football club was the registered proprietor of the trademark ‘ARSENAL’ used concerning the team, cannon devices, etc. The defendant was selling souvenirs and club merchandise bearing the said Registered Trademark without obtaining a license or prior authorization from the Football Club. The Club brought an action against Matthew Reed alleging trademark infringement and passing off. Arsenal lost its claim on passing off since it failed to substantiate its claims through reasonable evidence suggesting the existence of confusion. Mr. Reed’s defense to the claim for trademark infringement laid in the argument was that his use of the Arsenal Mark did not amount to ‘trademark use’ or ‘use indicating trade origin’ but merely as badges of allegiance. The European Court of Justice ruled in favor of Mr. Reed; however, on appeal to the Court of Appeal, the Court rightly rejected Reed’s contentions and ruled in favor of Arsenal.
However, the trademark legislation in itself may not sufficiently provide for a remedy against ambush marketing since, in most cases, ambushers do not make direct use of the trademarks or insignias of the legit sponsors. Instead, they usually refer to the sponsors or the games in their products or services ingeniously and creatively to circumvent the law. Therefore, the said issue should be dealt with within the law governing the sphere of Unfair Competition since Article 10bis of the Paris Convention states that “the countries of the Union are bound to assure to nationals of such country’s effective protection against unfair competition.” There are a few nations that have promulgated legislation to curb the practice. A few of these nations include New Zealand, China, and the United Kingdom.
Like patent trolling takes place in the domain of patents, in the same fashion, trademark bullying occurs in the domain of trademarks. Trademark bullying may take many forms, out of which one is ‘ambush marketing.‘ Therefore, when a rightful sponsor pays handsomely for exclusively advertising its products or services under its own trademark/name, it shall have the right to prevent and stop a competitor who is not an authorized sponsor from stealing that benefit. The following are a few steps that a marketer can take against an enterprise pursuing such unfair business practices:
As can be observed, the rightful sponsor can help identify the mischievous ambush marketers, but the other end of the rope is hooked by the event organizers only. The reason for imposing an obligation on the event organizers helps in rapport and image formation to attract better sponsors in the future. Therefore, to contain the practice, careful and anticipatory planning in advance to responding to such ambushing or safeguarding one’s legitimate premise through preparation by a legal action team can help shift back the focus to the rightful sponsor. Lawyers can help ensure that in the tit-for-tat, the sponsor does not itself stumble into trouble by helping it avoid infringement, unfair competition, and product disparagement claims.
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