Introduction
Sports is an arena where not only teams compete to stand as champions, but even brands compete to gain publicity. It is not uncommon for brands to sponsor large-scale sports events to gain publicity. But there are always some wisenheimers out there who come up with ways to gain publicity without paying the sponsor fee, often overshadowing the official sponsors.
This is where ambush marketing comes into play, sometimes called parasite marketing, and it is very prevalent in sports events. The recent UEFA 2024 and Cristiano Ronaldo have caused this issue to be resurfaced. Moreover, no specific legislation on this matter allows for the exploitation of lacunae.
In simple words, ambush marketing occurs when a brand advertises itself in such a way that gives the impression that it is associated with an event without actually paying any sponsor fee. This is an advertising stunt that catches the eyes of the viewers of the event while also saving marketing costs.[i] In a way, the brand rides on the event’s goodwill by implying an association with it. One can say that such cases can be dealt with by the Indian Trademarks[HT1] Act of 1999;[ii] however, it also has limitations, which will be discussed further in this article.
What happened with Ronaldo in UEFA EURO 2024?
In a football match between Portugal and Slovakia, excitement got everyone’s hearts thumping hard in their chests. It was no different for players, especially during a penalty shoot, when everyone had their eyes fixed in anticipation. The GOAT, Ronaldo, missed a penalty shoot but managed to score the other one, which became a noticeable moment in the match. During this whole time, Ronaldo was wearing a health tracker by a company named WHOOP that collected biometric data, including his heart rate. Obviously, his heart rate during the penalty shoots was also recorded and released by the company.[iii]
Ronaldo is working with WHOOP, but the company has no association with EURO 2024. The company used not only Ronaldo’s name, but also the name of both the teams and the score. On this, Ricardo Fort, the former head of global sponsorships at Visa and Coca-Cola, alleged the company of ambush marketing. He also condemned Ronaldo and alleged that he was violating UEFA Rules.[iv]
Why exactly is ambush marketing harmful?
Sponsorship and advertisement revenue raise most of the funds for those splendid sports events we view on television.[v] In this case, a brand passing itself off as an official sponsor gains an advantage by deceiving the consuming public and overshadowing its competitor. However, what do the event organizers get? Bad reputation among potential sponsors, misuse of its hard-earned name and a blow for not getting the sponsorship fee they deserved from the ambush marketer. This is a losing game for the event organizers.[vi]
These ambush marketing strategies snatch the limelight of the legitimate sponsors, leaving them aggrieved. Nike is famous for this, especially in the Atlanta Olympic Games, where Michael Johnson set a new world record while wearing Nike shoes. This grabbed everyone’s attention towards Nike, even when Adidas was the official sponsor![vii] The athletes are prohibited from advertising during and before the Olympics to prevent ambush marketing. However, this bold move by Nike gained publicity, derived from the publicity of the Olympic games, without requiring the participant to ever advertise. In fact, an advertisement was not needed as television and news were already flooded with articles about the new world record and Nike Volt shoes.[viii]
Search of a remedy against ambush marketing?
Under the Indian Trademarks Act, 1999 (hereinafter referred to as ‘the Trademarks Act, 1999), the owner of the trademark can sue the infringer for trademark infringement.[ix] However, the problem in ambush marketing is that the infringer is not directly infringing the owner’s registered trademark. Instead, the infringer is only using tactics to show that their product is related to the event of the trademark owner. A bare reading of Section 29 of the Trademarks Act, 1999 indicates that mere usage of tactics, without any actual use of the registered trademark is not an infringement of the registered trademark.[x] This means that covert expression of association with an event, with no actual use of trademark, would not count as infringement! Since it is not an infringement under Trademarks Act, 1999[HT2] , there is no remedy for it[HT3] . However, we cannot deny that the event organizer’s reputation of the event organizer has been used to gain advantage.
Booking seats for audience[HT4] covered up in your brand’s logo, in an event you are not an official sponsor of, would be blatantly overriding on their reputation, with the event organizers getting nothing, if not losing the trust of the official sponsors.[xi]
The usage of generic words to project a relation with an event has the potential to fit as ambush marketing. In the case of ICC v Arvee, although the Court said that the usage of generic words like “World Cup” would not be covered under ambush marketing, we need to be precise about the facts of the case as well. In this case, the defendants were able to prove that their business was not “approved, authorized, or endorsed by the plaintiff.” This means that there is still scope if the usage of generic words creates an impression that a product or service is linked with an event, it might still be considered ambush marketing.
But the question arises, under what law? As discussed above, the Trademarks Act, 1999 is not suitable for a remedy. The Copyrights Act, 1957 won’t be of much applicability since in ambush marketing, the brands are not careless enough to directly use logos or brand names. If we go by Section 13 of the Copyright Act, 1957, copyright subsists in:[xii]
“original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording.”
Now, the name of an event does not fall into any of the above-mentioned categories. This means, a copyright does not subsist in the name of the event itself. The logo is definitely an artistic work and therefore copyright could be claimed for it, but merely using the name of the event could not invite any actions under the Copyright Act, 1957.[xiii]
In the 2012 London Games, a brand called Paddy Power stole the limelight of the official sponsors by publishing posters that it was the official sponsor of the “largest athletic event in London.” It was not false, but it was not fair, too, because the athletic event Paddy Power was referring to was a small village in France called London![xiv] In this case, Paddy Power has just used the name of the place on which there was no copyright; hence, there is no remedy under Copyright law.
When ambush marketing results in an unfair competitive advantage, the official sponsor, if it shows that there has been an Adverse Effect on Competition in the relevant market, will get compensation for the same.[xv] However, what about the event sponsors? The brands have piggy-backed on their names, but they are in no way competitors with that brand. They cannot claim that they have suffered a competitive setback in the relevant market because, in this case, no relevant market can be determined since they do not operate in the same market in the first place. The event and the brand product are not substitutes for one another and, therefore, cannot make a claim under competition law as well.
Looking from the lens of the Consumer Protection Act, 2019 a perusal of Section 2(47), which defines unfair trade practices might include the case of ambush marketing as an unfair trade practice.[xvi] However, under the Consumer Protection Act, 2019, only a consumer, can file a suit. The event organizers do not qualify as consumers, so they are again left remediless.[xvii]
Undeniably, there is damage to the event organizer and a profit to the ambush marketer. The ambush marketer has trampled over the hard-earned reputation of the event organizers. It is unfair that they get an easy advantage while the event organizers sit there, aggrieved, watching their name being misused. It is also unfair for the legitimate sponsors who have paid a hefty sum so that their brand can be advertised during the events.[xviii][HT5]
Conclusion
Ambush marketing sounds like a smart move for brands who want to gain publicity without parting with their money. On the other hand, it is detrimental to the event organizers and legitimate sponsors. There is a dire need to bring this practice to light and enact a separate legislation that tackles the issues associated with ambush marketing. New Zealand introduced its Major Events Management Act, 2009 to prevent ambush marketing and exploitation of event organizers and sponsors. The United Kingdom has also already addressed this issue and introduced the Olympic Symbol Protection Act, 1995 for the same. India has not enacted any such legislation to protect against ambush marketing, which disincentivizes event organizers to get attracted to here. This can drag down India’s economic growth by driving away event organizers and making brands skeptical of how well their intellectual p
[i] Michael Payne, ‘Ambush marketing: The undeserved advantage’ (1998) 5(4) Psyc. & Marketing <https://doi.org/10.1002/(SICI)1520-6793(199807)15:4%3C323::AID-MAR3%3E3.0.CO;2-A> accessed 6 November 2024
[ii] The Trademarks Act 1999
[iii] Chris Burton, ‘’It is illegal!’ – Cristiano Ronaldo accused of ‘ambush marketing’ at Euro 2024 as similar punishment to that previously handed out to Nicklas Bendtner is demanded for Portugal superstar’ (Goal, 4 July 2024) <https://www.goal.com/en/lists/illegal-cristiano-ronaldo-accused-ambush-marketing-euro-2024-punishment-nicklas-bendtner-demanded-portugal-superstar/blt6fd1c3c35dd31288#cs41fa575bac627e30> accessed 6 November 2024
[iv] Ibid
[v] Supra 1
[vi] Ibid
[vii] Gjoko Muratovski, ‘Ambush marketing:: Nike and the London 2012 Olympic Games’ (2014) 2 Design for Business <https://www.researchgate.net/publication/292715362_Ambush_marketing_Nike_and_the_London_2012_olympic_games> 6 November 2024
[viii] Ibid
[ix] Supra 2
[x] The Trademarks Act 1999, s 19
[xi] Simon Chadwick, ‘Models, Messi and wacky races: the art of ambush m1arketing’ (The Conversation, 30 January 2014) <https://theconversation.com/models-messi-and-wacky-races-the-art-of-ambush-marketing-22622> accessed 7 November 2024
[xii] Copyright Act 1957, s 13
[xiii] Department For Promotion of Industry and Internal Trade, ‘A Hand Book of Copyright Law’ Government of India, Ministry of Commerce and Industry <https://copyright.gov.in/documents/handbook.html#:~:text=What%20is%20the%20scope%20of,a%20work%20must%20be%20original.&text=What%20is%20a%20work?,the%20following%20classes%20of%20works> accessed 22 November 2024
[xiv] Supra 11
[xv] The Competition Act 2002
[xvi] The Consumer Protection Act 2019, s 2(47)
[xvii] The Consumer Protection
[xviii] Supra 11
[HT1]India’s Trademarks Act
[HT2]Apart from TM infringement, copyright and design infringement can also take place through ambush marketing. You may want to highlight relevant provisions of those laws.
[HT3]You can bring the example of ICC v. Arvee to highlight Indian Court’s treatment of ambush marketing issue
[HT4]Thinking aloud, can a certain matter under ambush marketing be covered by the Consumer Protection Act?
[HT5]Can’t the Competition Law deal with this, as such activities can be categorized as acts of unfair competition.
Authored By: Dev Astha
A third year law student at the Indian Institute of Management Rohtak
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