2024 is living up to its billing as a ‘Summer of Sport’ featuring the Olympic Games, the Euros, the Cricket World Cup and Wimbledon, with businesses across the world getting creative with their marketing campaigns, hoping to capitalise on the action by flirting with advertising regulations in a bid to take advantage of high-profile events. Here, Molly Hackett and Eleanor Drury look at Ambush Marketing and how brands can get creative whilst being aware of the potential pitfalls of suggestive campaigns?
Ambush marketing is an attempt by a brand, without permission, to associate itself with a high-profile event, such as the Paris 2024 Olympic and Paralympic Games, through marketing campaigns, so as to create the impression that they are in sponsorship, affiliated or in partnership with the event organisers and rightsholders.
Ambush marketing is historically common within sports, with examples dating back to the 1996 Olympics whereby sportswear brand ‘Nike’, a non-official sponsor of the event, ingeniously took out extensive advertising space on billboards across the host city of Atlanta, going as far as to open a brand new Nike store right behind the Olympic Village and famously kitting out American athlete Michael Johnson in a pair of $30,000 custom gold Nike trainers as he won both the 200 metre and 400 metre races.
The aim of such a strategy is to take commercial advantage of the hype and publicity around an event without incurring the cost of an official association. Ambush marketing in itself is not illegal under English law, that being said this depends on the creativity of the campaign and how much the brand ‘pushes the dial’, within the context of intellectual property rights, advertising and trading practices.
So far in the summer of sports we’ve seen Wimbledon Tennis Championships acknowledging the influx of free sun hats, rain capes, umbrellas, suntan creams, radios and water bottles given by businesses to spectators outside of the event in the hopes of free advertisement of their brand to the world and putting strict mechanisms in place as a result to prevent the unauthorised commercial advertising material.
As you would expect, The Olympic Games and its brand identity (logos, tag lines, names, etc.) is heavily protected through registered and unregistered intellectual property rights, such as trademarks, copyright and design rights. This is a well contemplated strategy to maintain the reputation of the Games; the names, emblems and logos for the 2028 Games in Los Angeles are already registered!
This is also the case for individual athletes who are competing, many of which have taken steps to protect their names, logos and iconic celebrations and poses (remember the Mobot!) Some athletes may be in partnership with official sponsors or other brands.
Whilst no doubt pushing ethical boundaries, ambush marketing is not made illegal by virtue of a specific legislation and is rather combatted by intellectual property rights and self-regulatory advertising codes such as the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) and the UK Code of Broadcast Advertising (BCAP Code), along with controls placed on athletes during tournaments and events via contracts related to countries and states’ participation.
Adidas vs. Nike: London 2012
Brands in the past have significantly benefitted from running creative marketing campaigns without directly infringing the rights of the event organiser or official sponsors; an infamous example in recent history being Nike’s “Find Your Greatness” campaign during the London 2012 Olympics. Despite Adidas being an official sponsor of the London Games, many assumed that Nike were the official sponsors due to their domination of the hype around the games, from athletes being kitted out with Nike trainers on the track and field to printed billboards dotted around the capital.
Nike successfully ran a global TV campaign featuring everyday athletes competing in places around the world named London (including London Ohio, East London South Africa and Little London Jamaica), as they were prohibited from referring to London, UK in their advertising. In addition, and in reference to other sporting events, Nike used tag lines such as “Greatness doesn’t only exist in SW19”, as a nod to Wimbledon.
Too bad for Adidas who had paid tens of millions to be the official sponsor…
Tips for brands
Whether it is the Olympic Games or any other high-profile event such as the Glastonbury Festival, brands should be aware of the potential pitfalls of creative but suggestive marketing campaigns and strategies:
- Avoid using official terms, logos or imagery in association with the relevant event – it is highly likely that these assets will be protected by registration or otherwise have built sufficient unregistered protection through goodwill, trade and reputation;
- Consider whether an ad or publication (including forms of social media advertising) may mislead the public that your brand has some form of official association with the event organiser, in light of relevant consumer law, ASA guidance and unfair trading practices;
- Be generally aware of what intellectual property infringement is, what it looks like and the potential consequences of overstepping the mark. This can be don by taking legal advice on your proposed campaigns and copy;
- ‘Tongue and cheek’ references and ‘nods’ to an event are much more likely to be acceptable and successful in capitalising on the hype of the event, without the infringement of rightsholders and any legal action being contemplated against the brand;
- Consider the medium of your advertising campaigns – if there is any risk a social media campaign may be easier to ‘take down’ if required, compared to physical campaigns such as national poster ads;
- Brands should not use words such as “sponsor”, “partner” or “supporter” in relation to an event in marketing unless it has the official right to do so.
For businesses still wishing to get creative with their marketing campaigns in order to benefit from the action this summer, there are smart and practical ways to do so, and if somebody would reasonably expect to see an official sponsor logo on your activity, then you may wish to re-think your marketing strategy.
If you have any questions about ambush marketing, IP law or your Intellectual Property Rights please get in touch with our specialist commercial law team at ads@beyondcorporate.co.uk
