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This article is written by Shlok Bansal, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction

Every corporation strives for its brand awareness and in the process of promoting its brand, it sometimes resorts to methods that are no doubt effective but controversial and unethical. One of those methods is ambush marketing which is also infamously called parasitic marketing. Ambush marketing is more prevalent in international events such as Olympics, Football World Cup, Commonwealth Games where companies, usually competing brands, capitalize to advertise themselves on the event, in which they are not an official sponsor. The aim of the ambushing company is basically to create a misconception in the minds of customers into believing that it has an official association with the said event.

In this article, we will understand the concept of ambush marketing and figure out the various methods by which companies resort to performing it. We shall also discuss the feasibility of Indian law to tackle the issue. The article points out various legislation or amendments brought by countries that define ambush marketing as a specific IPR infringement and fixes liability. 

What is ambush marketing?

Ambush marketing is a marketing strategy where a company hijacks the marketing efforts of another company and tries to steal the spotlight from an event which another company has sponsored. To understand this let us imagine a cricket match being sponsored by Vivo, where Samsung tries to hijack the marketing efforts of Vivo by reserving the seats in the stadium in such a way that whenever the umpire is zoomed in for the decision, people behind him wearing blue Samsung t-shirts are displayed. Vivo’s marketing efforts to expand its brand awareness by investing millions of dollars in sponsoring the match will be shattered when its rival Samsung tries to market and capitalize on an event in which it hasn’t spent a penny.  

It seems that the term ambush marketing originated from the 1984 Summer Olympics in Los Angeles. Where, a Japanese brand, Fuji, had secured the sponsorship for the games. This frustrated its US rival Kodak and in response, Kodak bought a considerable amount of TV advertisement space. Further, Kodak used advertisements to create an impression that it was the official sponsor of the Summer Olympics and thus leading the way for ambush marketing.

In the words of Delhi High Court, “Ambush marketing is opportunistic commercial exploitation of an event. The ambush marketer does not seek to suggest any connection with the event but gives his brand or other insignia, a larger exposure to the people, attached to the event, without any authorization of the event organizer.” 

Types of ambush marketing

Ambush marketing is divided into three main types: direct ambush marketing, indirect ambush marketing, and incidental ambush marketing which are further subdivided into various types which have been explained here.

Direct ambush marketing

Direct ambush marketing is a marketing strategy where a brand starts an aggressive campaign to associate itself with an event or property, the brand tries to get the spotlight, even though it has not purchased any official right in the event as that of the official sponsor. There are mainly four ways to perform direct ambush marketing.

  • Predatory ambushing

Here, just like a predator brand purposely attacks other brand’s advertisement efforts to gain the market share and confuse the public. A classic example of predatory ambushing is from the 1997 Asia Cup (Cricket) where Pepsi was the official sponsor of the event but Coca-Cola bagged the television sponsorship rights for the event. This led to the audience being perplexed as to who is the original sponsor of the Asia Cup.

Another example is from the 1994 Winter games which were sponsored by Visa but American Express snatched away the marketing efforts of the official sponsor in a predatory manner by starting a tagline “So if you’re travelling to Norway, you’ll need a passport, but you don’t need a Visa”. This tagline shattered the marketing campaign of Visa and left it outraged.

  • Coattail ambushing

A coattail is a divided piece of cloth attached to a jacket that hangs down from the back. Coattail ambushing is a marketing strategy where a brand tries to connect itself with an event by using a link instead of becoming an official sponsor of that event.

One of the most notorious examples of coattail ambushing is when Puma, though not being an official sponsor of 2016, Rio Olympic tried to link itself with the event by sponsoring one of the most celebrated athletes Usain Bolt. The athlete on winning the game lifted his shiny golden Puma shoes like a trophy giving Puma a link to connect itself with the event and start its marketing campaign on social media with the hashtags like “When you are @Usian Bolt, you are #ForeverFaster”.

  • Property or trademark infringement

A brand intentionally uses trademarks, logos, symbols, taglines, phrases, or other properties of other brands to advertise its services in a bid to dilute the market space or confuse the customers. For example, the organizers of the Olympic games may employ hundreds of officers across the city devoted to protecting the intellectual property that the brand holds.

  • Self-ambushing

Self-ambushing takes place when the official sponsor of the event performs activities that are beyond the decided terms of the sponsorship agreement. For example, in the 2008 UEFA European Championship, the official sponsor Carlsberg offered goodies with the Carlsberg logo at the tournament. This form of advertisement was not included in the sponsorship agreement, and subsequently, the Carlsberg advertisement violated the rights of another company that was permitted to distribute freebies to the audience at the tournament.

Indirect ambush marketing

The companies to gain brand recognition indirectly attach themselves to the advertising campaign of their rival brands and try to mislead people by using images, photos, symbols, or words. Here the approach of the company isn’t aggressive like direct ambush marketing as the company’s intention isn’t to grab the spotlight but to gain some exposure from the event or marketing efforts of other brands. The ways a company can indirectly ambush its rival brands are mentioned below.

  • Associative ambushing

It is the use of unique slogans, phrases, or say images that are not protected by intellectual property laws and create an illusion that the company has links to a sporting event or property

  • Distractive ambushing

It is a way to distract the audience by setting up a promotional activity like setting up stalls at or near an event, without making any specific reference to the event whatsoever.

  • Parallel property ambushing

It is a marketing strategy where one company starts or sponsors an event that is identical to another event sponsored by its rival brand. Here the objective of the company is to divert customer’s attention from the pre-existing event and capitalize on the main event’s goodwill.

  • Insurgent ambushing

It is a marketing strategy to execute an aggressive promotional activity like a surprise flash mob at an event to maximize brand awareness and to distract the attention of the audience from the official sponsor of the event or the event itself.

Incidental ambush marketing

  • Unintentional ambushing

It is an event where consumers mistakenly identify a non-sponsoring company as an official sponsor due to its prior or expected association with the event.

  • Saturation ambushing

A strategic increase of advertisements in the broadcast media and marketing of a product at the time of an event without giving any reference of the event whatsoever. Further, leading to confusion in the minds of consumers regarding the actual sponsor of the event.

Indian judicial discourse on ambush marketing

Indian judicial discourse on ambush marketing has not proved to be promising for the event organizers. In the absence of any exclusive legislation prohibiting ambush marketing, event organizers have to resort to protection under intellectual property law that provides no guaranteed remedy. A glaring example of this is the case from ICC World Cup 2003 which has been discussed below.

Organizers are compelled to look for options and seek protection against infringement by taking recourse to the Indian Trade Mark Act 1999, the Copyright Act 1957, or the common law of passing off.

Trademark infringement

If an organizer or a sponsoring brand has a registered trademark and if that registered trademark or any similar or deceptively similar mark is used by an unauthorized user, the sponsoring brand or an event organizer can commence proceedings for trademark infringement under Section 29 of the Trade Mark Act 1999

It is to be noted that today infringing brands have been more cautious and have switched to indirect techniques of ambush marketing where the use of their own brand’s name is preferred instead of using any similar or same mark that could be linked to the event. Hence, making the trademark act remedy-less.

One such example of indirect ambush marketing making trademark act remedy-less is ICC Development (International) Ltd. Vs Arvee Enterprises and Anr. The facts of the case are that ICC Development (International) Ltd (the plaintiff) was the organizer of the ICC World Cup 2003 and controlled all the commercial and intellectual property rights relating to the event. In India, the plaintiff had applied for the registration of the trademark on the word “ICC Cricket World Cup South Africa 2003”, logos and the mascot “Dazzler”.

Simultaneously on the other hand the Second defendant “Philips” had organized contests using catch slogans like “Philips: Diwali Manao World Cup Jao” taking words similar to a registered trademark by the plaintiff. To this, the plaintiff contested for trademark infringement but the court rejected its contention and was of the view that Philips is not using any registered trademark by the plaintiff and the world “World Cup” is generic making it open to use.

Copyright infringement

This remedy is most likely to be sought where logos or other original works of authorship are used without a license by third parties. A copyright owner can initiate infringement proceedings under Section 51 of the Indian Copyright Act.

The Delhi High Court in case of ICC Development (International) Ltd. Vs. Evergreen Station, granted an injunction against the defendant only on the grounds of misuse of the World Cup logo though the arguments of the plaintiff were based on the Prima facie case of passing off, unfair competition, and violation of publicity rights. The court, in this case, held the logo to be an artistic work under the Indian Copyright Act.

Passing off

Among the remedies available, an owner of an unregistered trademark can take recourse to Section 135 of the Trademark Act 1999 which is based on the principle that no man may pass his goods as those of others. However, organizers have to fulfil three preconditions before getting a remedy against the act of passing off which are not always easy to establish.

The first one that the event organizer has to establish that he has developed sufficient reputation or goodwill among the general public concerning the event in question, the second requirement is that the event organizer has to show that the third party has made a misrepresentation by way of ambush marketing and has led the public to believe that it has a connection with the event organizers and the last requirement is to prove that organizer has suffered or is likely to suffer damages as a result of such confusion caused by ambush marketer. 

Anti-ambush marketing legislations in various countries

With the rapid increase in the cases of ambush marketing many countries are now enacting legislation that could counter the same. South Africa’s Trade Practice Act of 1976 expressly prohibits ambush marketing. Also, their Merchandise Marks Amendment Act, 2002 gives powers to the Ministry of Trade and Industry to declare certain events as protected once in their territory. 

The Australian government has passed the Sydney 2000 Games (Indicia and Images) Protection Act, 1996 in response to rising ambush marketing cases and has enacted similar laws for hallmark sporting events. New Zealand has also passed legislation to protect organizers from ambush marketers by enacting the Major Event Management Act in 2007. The Chinese government passed the Regulations on the Protection of Olympic Symbols when it hosted the 2008 summer Olympics. The USA also protects the rights of organizers under the Lanham Act. Countries like England, Brazil, and Canada too have taken positive steps to counter-ambush marketers.

Conclusion

India has no particular legislation dealing with ambush marketing and the present laws of intellectual property aren’t competent to tackle various techniques of ambush marketing. This legal lacuna in Indian legislation has allowed ambush marketers to enjoy unlimited profit at the cost of legitimate organizers of an event.

If ambush marketers are allowed to continue with their unethical marketing practices the organizers would find it hard to conduct events in India as they require sponsorships and sponsors would not be willing to invest in those countries where they cannot enjoy the perks of their investment. 

It is time now that Indian legislators start considering the threats of ambush marketing and draft legislations that illegalize the practise of ambush marketing and consider it as a specific IPR infringement. 

References


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