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Ambush Marketing and the 2022 and 2023 FIFA World Cups: Douglas Kitchen and Laura Harper from Irwin Mitchell

With the success of last year’s FIFA World Cup in Qatar and the much-anticipated FIFA Women’s World Cup 2023 taking place this year, ambush marketing has… View Article

RETAIL BUSINESS STRATEGY

Ambush Marketing and the 2022 and 2023 FIFA World Cups: Douglas Kitchen and Laura Harper from Irwin Mitchell

With the success of last year’s FIFA World Cup in Qatar and the much-anticipated FIFA Women’s World Cup 2023 taking place this year, ambush marketing has become a hot topic for event organisers and brands alike.

Large-scale events such as the FIFA World Cup and The Olympic Games seek to maximise their sponsorship income through licensing valuable intellectual property and marketing rights to their ‘official partners.’ In return for (often significant) financial or other contributions, these partners are granted exclusive opportunities to utilise intellectual property rights associated with these events to market their services or products to the millions, and even billions, of fans worldwide.

Ambush marketing is generally defined as a planned effort by organisations to associate themselves directly with a particular sponsored event to gain at least some of the recognition and benefits that are associated with being an official sponsor.

Brands, seeking to capitalise on the media surrounding large sporting and cultural events without paying the associated sponsorship or partnership costs, may seek to adopt clever marketing techniques to do so. Following the FIFA World Cup 2022 and the upcoming FIFA Women’s World Cup in Australia and New Zealand, we examine some of the different techniques used, and consider the legal issues and risks associated with these techniques.

Ambush by association is an attempt by a brand to associate itself with a major event in order to benefit from the same recognition generally reserved for the official partners. A high profile example which managed to steer clear of infringing third party intellectual property rights was the Etihad Airways marketing campaign during the 2022 tournament.

Featuring retired Dutch international footballing superstar Clarence Seedorf and UFC legend Khabib Nurmagomedov, the advert promoted the fact that the UAE airline were running six flights a day from Abu Dhabi to Doha during the World Cup. Notably, there is no mention of the World Cup in the campaign, with the tournament instead referred to as ‘the biggest football tournament of 2022.’

Qatar Airways was FIFA’s official airline partner, and among airlines, had exclusive rights to utilise the governing bodies’ official trademarks relating to the FIFA World Cup. With accommodation at a premium during the tournament many supporters chose to stay in the UAE before travelling to games. Etihad Airways’ campaign appears to have been aimed at capitalising on this by tacitly referring to the tournament.

Flagrant ambush by association attempts could lead to costly claims for trade mark infringement. FIFA is the proprietor of a significant portfolio of trade mark applications and registrations for marks, including “World Cup 2022” and “Women’s World Cup 2023,” in Qatar, Australia, New Zealand, and beyond. These marks include ‘FIFA,’ ‘World Cup,’ ‘Qatar 2022,’ ‘World Cup 2022’ and “Beyond Greatness.” Once registered, a trade mark confers monopoly rights to FIFA in respect of the goods and services for which it is registered.

It is also important to consider that the various national teams and players will own trade mark registrations, protecting names, logos, badges, mascots and slogans. If any of these trademarks are used in unofficial advertising campaigns, brands could face costly intellectual property infringement claims. Similarly, copyright which may also exist in mascots, logos, kit and packaging could also be infringed if used unofficially in an advertising campaign without the consent or licence of the copyright owner. Copyright enables an owner to prevent (amongst other things) a third party from copying a copyright work (or a substantial part of a copyright work) without the consent or licence of the owner.

Copyright, registered trademarks and the common law of passing off constitute the main suite of intellectual property rights which form the legal bases of protection against ambush marketing in the UK.

To avoid infringing the registered and unregistered rights outlined above (and/or their foreign national equivalents); brands should take a cautious approach. At the 2022 World Cup, the use of a football, or a thematic reference to Qatar in advertising campaigns are unlikely (depending upon context) to give rise to a claim. In contrast any campaigns which expressly refer to the World Cup and suggest that the product or service being advertised is formally associated with the World Cup, will risk a successful claim for trade mark infringement and an award of damages and possible injunctive relief.

The value of the suite of rights owned by the World Cup organisers was recognised in local laws when (amongst other things) Qatar’s Law No.10 of 2021 on Measures for Hosting the FIFA World Cup in Qatar in 2022 was implemented prior to the tournament. Its specific aim was to prevent misleading advertising practices from companies which were not official partners of the FIFA World Cup 2022.

In the UK, The Advertising Standard Authority (ASA) enforces the provisions of the Committees for Advertising Practice (CAP) and Broadcast Committees for Advertising Practice (BCAP) Codes which prevent third parties from launching event-related sales promotions and campaigns (on non-broadcast and broadcast channels, respectively) which are deemed to be misleading. Similarly,  the provisions of the Consumer Protection from Unfair Trading Regulations 2008 could also  be invoked if such a marketing campaign was deemed to be misleading.

Ambush by intrusion occurs when a company places trademarks or other branded content at the event, or just outside it with the aim of such trademarks or content being picked up by the media or seen by the event attendees. This could be through the use of airplanes carrying branded messages, offering free products to fans as they arrive, or through other more inventive techniques.

Large-scale football tournaments have seen some of the most notable and well publicised attempts at this form of ambush marketing. Most famously during the FIFA 2010 World Cup when dozens of Dutch women revealed orange mini-dresses allegedly associated with the Bavaria beer company. This led to the arrest of two of the Dutch women (though charges were subsequently dropped), as well as former footballer Robbie Earle being sacked from his role as a pundit during the tournament for supplying the tickets.

Following this, at the 2012 European Championships Danish striker Nicholas Bendtner revealed a pair of green boxers branded by the bookmaker Paddy Power. Bendtner was fined €100,000 by UEFA. Paddy Power stepped in to pay the fine, despite claiming they had nothing to do with the incident. The subsequent media storm generated a large amount of publicity for the bookmaker. The Brazilian striker Neymar did a similar thing at the 2014 World Cup with Blue Man, a Brazilian swimwear brand. No action was taken as the reveal was found to be ‘incidental’ rather than intentional.

There are a number of measures which can be used to prevent ambush by intrusion attempts. These include contractual controls, such as the terms and conditions under which tickets are sold, which will normally ensure any commercialisation of the tickets (including use in promotional prize draws) without prior approval is prohibited. Additionally, players and teams will normally be under a contractual obligation to not use the publicity the event generates to pursue their own personal marketing and economic goals.

Major events will also often have special laws preventing unauthorised advertising in and around the relevant stadia. For example, in Qatar, Law No. 10 of 2021 stated that during the World Cup any advertising or trading within a two-kilometre radius (and in the airspace above) on the day prior to a match day, and on a match day, must have prior approval of FIFA.

Any brands looking to market themselves through ambush by intrusion methods should also take legal advice in the relevant region. They should also look to weigh up the costs of any potential claims against the additional publicity which may be generated.

Opportunistic advertising is often done in a humorous manner and in response to controversial or notable moments at a particular event. This form of advertising has gained more prominence in recent years. Again, Paddy Power was at the centre of this during the 2018 World Cup in Russia, promising to donate £10,000 to LGBTQ+ charities for every goal scored given the host country’s stance on LGBTQ+ rights.

Due to the myriad of human rights criticisms levelled at the host country  during the Qatar World Cup, opportunities to reflect these criticisms in advertising  during the tournament were taken by some brands. Most notably BrewDog  launched a campaign declaring itself the ‘anti-sponsor’ of the World Cup and describe the tournament as the ‘World F*Cup’. This was an attempt to promote the brewers promise to donate all profits made from its ‘Lost Lager’ during the tournament to human rights charities. Whether or not this was  ‘opportunistic’ is debatable, as the campaign clearly leveraged the growing social unease in some quarters during the lead up to the World Cup.

Brands can also  take immediate advantage of events on the pitch on social media. In 2014, Uruguayan striker Luis Suarez bit Italian defender Giorgio Chiellini, leading to a large scale ‘social ambush’ with a number of brands, including Spec Savers and Peperami posting jokes in relation to the incident.

Whether opportunistic advertising constitutes actionable ambush marketing depends on context. Historically, rights holders have struggled to make claims in relation to these campaigns, as the advertising is usually negatively linked to the event. This means the argument that consumers may be tricked into thinking the brand is an official partner or sponsor is a weak one. Nevertheless, brands should still take advice over potential challenges from the rights holder as a result of the negative coverage generated.

It’s important to recognise that not all forms of ambush marketing will infringe third party rights.

Official sponsorships provide an exclusive opportunity for brands to benefit from the huge interest that large scale sporting and cultural events generate. They also ensure that host organisations have the financial support required to deliver such events through effectively managed exploitation of commercial rights. Following the euphoria generated by the Lionesses victory in the UEFA Women’s European Championships 2022, the 2023 FIFA Women’s World Cup will give brands an opportunity to gain even more exposure.

Whether seeking to benefit from an official or unofficial association, brands must ensure that they take a cautious approach and obtain specialist  legal advice on how to negotiate the relevant, contracts, regulations and rights.

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