On Your Mark, Get Set, Go! Ambush Marketing and the Pan Am/Parapan Am Games 2015

As with any other major sporting event, the Pan Am/Parapan Am Games 2015 will showcase elite athletes. Behind the scenes the marketing games will also be in full swing. These games involve ambush marketing, the bane of major sporting events and their sponsors.

‘Ambush marketing’ is a term coined in the marketing world to describe advertising that creates an association between a major sporting event and a particular product, service or business – without the event organizers being able to benefit from the usual lucrative sponsorship agreement. Traditional IP laws have not been much use in dealing with the more sophisticated forms of ambush marketing. Trademark law, for example, would prevent a company from using the trademarks of a major sporting event without consent (in the form of a sponsorship agreement), but clever ambushers do not need to use these trademarks to create associations with a high profile event. For example, when Germany hosted the FIFA World Cup in 2006, Air Emirates was the official airline of the event. Its competitor, Lufthansa, painted the pattern of soccer balls on the nose cones of its airplanes. The association was created without use of anyone’s trademarks. There are many other examples.

Event organizers – keen to extract the maximum in sponsorship revenues from sponsors – have long struggled against ambush marketing. There are at least two main types of ambush marketing, and a third is also gaining recognition. These are intrusion, invasion and association.

Intrusion and invasion occur when the trademarks of non-sponsors enter the spaces dedicated to the major sporting event, preserving spatial exclusivity for event sponsors. Intrusion occurs when branded items enter event venues on the person (or vehicles) of attendees. Invasion involves a more deliberate plan – perhaps by a group of attendees and perhaps organized by a non-sponsor company. A notorious example is that of the group of women who wore orange dresses to a FIFA event in South Africa in 2010. Intrusion and invasion have long been addressed through ticket clauses that prevent ticket holders from wearing clothing bearing the visible trademarks of non-sponsors, and from bringing into the venue products (such as bottled water or soft drinks) bearing the trademarks of non-sponsors. The Pan Am/Parapan Am Games 2015 are no exception. Ticket terms and conditions specifically prohibit ambush marketing in clause 11(c) (“whether by invasion, intrusion or otherwise”), There are also restrictions on bringing food or drink into the venue. While this is in part to push attendees to purchase such items from on-site vendors, it also limits the possibility of non-sponsor items from entering TV camera sight planes. There are also separate restrictions imposed by organizers on athletes in terms of how visible logos can be on sporting wear and other equipment they use. Consistent with our wired age, the Terms of Use of the Pan Am/Parapan Am Games 2015 website also prohibit use of the website or any official social media sites for ambush marketing.

Ambush marketing by association is harder to deal with, particularly where it does not infringe existing IP laws. Major sporting event organizers (the IOC, FIFA, etc) have begun to pressure countries that bid for their events to put in place legislation to protect not only against ambush marketing by association but also ambush marketing by intrusion. Some countries have introduced event-specific laws; others, such as New Zealand, have introduced legislation that can be applied to any event designated as a major event. These laws make it illegal to create an “association” with an event. Olympic-related legislation has tended to do this by, among other things, creating lists of words that, if used by advertisers, are considered problematic. In unitary states, such laws have also provided protection against ambush marketing by intrusion. Whereas previously event organizers could only control private spaces associated with the events through ticket clauses and other contractual agreements, such laws controversially restrict the use of non-sponsor trademarks and advertising in wide swaths of public space, including airports, public transit lines, public parks and streets near event venues.

Canada enacted its first anti-ambush marketing law for the 2010 Vancouver Winter Games. The commitment to do so was made to the IOC in the bid documents. The Olympic and Paralympic Marks Act (OPMA) created a special status and special protection for Olympic and Paralympic marks. It also created a separate recourse against ambush marketing by association. Because Canada is a federal state, and the provinces have jurisdiction over property and civil rights, the law could not address ambush marketing by intrusion into the spaces around Olympic venues. This was done by Vancouver City by-laws, a number of which were challenged by the B.C. Civil Liberties Association. As with other legislation of this kind, the statute created lists of words, the use of which were considered suggestive of ambush marketing. These included common words such as: Vancouver, twenty-ten, 2010, Whistler, gold, silver, bronze, winter, and so on.

Legislating against ambush marketing is of questionable value. Action taken by event organizers against small or local businesses (or women wearing orange dresses) can create a sense of public outrage that is perhaps more harmful to the goodwill associated with the event than ambush marketing itself. Further, as Canada’s bold Olympic ambushers illustrated in 2010, associations can be created by encouraging the public to celebrate “Canada”, and it is difficult to see how a major sporting event can claim any form of monopoly over displays of national pride. Anti-ambush marketing legislation may also raise interesting freedom of expression issues so far as it relates to small and local business making reference in their advertising to events taking place in their communities. Of course, small businesses generally do not have the resources to fight legal battles over marketing; once they receive a cease and desist letter from event organizers, they tend to cease and desist. High profile competitors of event sponsors, on the other hand, have legal departments at their service to vet their advertising campaigns to ensure they fit comfortably within legislative loopholes. The effectiveness of such laws is open to question; their overall impact may even be negative.

In Toronto’s bid to host the Pan Am/Parapan Am Games it promised to ask the federal government to extend the application of the OPMA to the Pan Am/Parapan Am Games (see Bid Book, page 189). In other words, as with other major events, the promise of legislation to address ambush marketing was made a part of the bid. In this case, the extension has not materialised. Instead, the organizers have contented themselves with a series of official marks (a special category of trademarks available to “public authorities” in Canada). As far as local businesses are concerned, the organizing committee has issued guidance on how to reference (or not reference) the games.

The approach seems far lighter than recent examples, although the Pan Am/Parapan Am Games are lower profile than the Olympics or FIFA events. But perhaps it is evidence of an important lesson learned: that there are limits to the use of law and legal institutions to address problems such as ambush marketing.

Teresa Scassa is the Canada Research Chair in Information Law at the University of Ottawa. Some of her writing on ambush marketing and the law can be found here, here and here.