Practice Area

Ambush Marketing: An Insight

Author: Kshitij Parashar

The term "ambush marketing", also known as ‘’parasitic’’ or “guerrilla” marketing,  can be defined as an attempt by an organization to benefit from the goodwill or popularity of a particular event by creating an association between itself and the event, without permission from the relevant organization and without paying the fees to become an official sponsor. A wide range of laws are required to prevent Ambush Marketing: Intellectual Property laws, planning laws, advertising regulation and contract and real property laws, etc. However, this article will be limited to the scope of Trademarks and the concept of ambush marketing.  Ambush marketing comprises of such actions of companies who seek to associate themselves with a sponsored event without paying the organizers.

The ambush consists of giving the impression to consumers that the ambusher is somehow affiliated with the event. Marketing strategies are usually combined with the use of words or imagery that will remind consumers of the famous event. It is an attempt of the third party to associate with the event or its participants so as to deprive the ‘official sponsors’ of part of the commercial value due to their ‘official’ designation. Such an association is not in consent with the event organizers and the aim is to delude the consumers into believing that they are the official sponsors. The main objectives of ambush marketing are to get maximum returns on the marketing buck and to undermine the branding efforts of the rivals by stealing the attention, increasing the clutter and confusing the viewers. The first reported incident of ambush marketing happened at the 1984 Los Angeles Olympic Games where Converse was an official sponsor; Nike built huge murals near the Los Angeles Coliseum displaying the Nike logo and several athletes wearing Nike sporting clothes. Other such examples could be -1996 Summer Olympics Games in Atlanta, Nike company covered the city in ads, benefiting from the focus on the city for the Olympics., Pepsi also involved in ambush market in the same event, recently Mahendra Singh Dhoni, Captain of the Indian cricket team was in highlights for reasons relating to ambush marketing clause given in ICC guidelines during the Cricket World Cup 2011 as he was a brand ambassador of a product directly in competition with an official sponsor of the World Cup.

Ambush marketing can be divided into two classes:

  1. Activities that are considered piracies and have clear cut remedy under the law. These are such activities that clearly constitute infringement of intellectual property rights in an event, for e.g. unauthorized use of a registered event logo on merchandise or false claims to be official suppliers of a team.
  2. Other activities- more subtle practices for which the remedy is less clear cut or may not even exist.

Ambush strategies:

Elaborating on the second category noted above, several methods of ambush marketing could be identified like; purchase advertising time on television before, during and after an event; erecting billboards near the event; using planes to fly their banners overhead or handing out free merchandise, like caps or T-shirts, at or near the event so that spectators who are picked up by television cameras become walking billboards. Any of these techniques might be combined with the use of imagery or words in advertising ; giving away free tickets to the event as prizes in an advertising campaign; sponsoring individual teams or athletes instead of the event itself; even sponsoring the city where the event is held, etc.

Impacts of ambush marketing

  • Threat to corporate sponsorship
  • Transgression on the intellectual property rights
  • Confusion as who is the real sponsor
  • Back door entry and unethical but not illegal
  • Riding upon the competitors back
  • Nurturing  unfair trade practices
  • It spoils traditional marketing

Ambush marketing and IPR regime
 At present, India has not enacted specific anti-ambush marketing laws and accordingly redress must be made to the Trade Marks Act, 1999, the Copyright Act, 1957.
(1)  The Copyright Act, 1957
The Copyright Act is a capable tool which provides a remedy in a limited sense against "ambush marketing" i.e. where logos or other original works of authorship are used without license by third parties. The Copyright Act, 1957 provides the owner of copyright privilege to enjoy the exclusive rights to reproduce, perform, publish adapt or translate, the copyrighted work and any such act undertaken without the license of the copyright owner would, generally, constitute copyright infringement. Now as per the Act infringement consist of two essential elements:

  • There must be sufficient objective similarity b/w the infringing work and the copyright work.
  • The infringing work must have been derived from the copyright work.

With regard to "ambush marketing" the Delhi High Court in case of ICC Development V. Evergreen Service Station, recognized a limited role of copyright law in granting an injunction preventing the defendants from using the logo of "ICC World Cup 2003" consisting of black & white strips and the mascot "dazzler" holding these to be "artistic work" protected under section 2(c) of the copyright Act, 1957.

(3)  The Trademark Act, 1999
Under the (Indian) Trade Marks Act, 1999 both civil and criminal remedies are simultaneously available against infringement and passing off. It is interesting to note that for seeking protection under the Indian laws registration of trademark is not mandatory, so even those who have not obtained any registration can enforce their rights in the court of law. Interestingly violation of a trademark is a cognizable offence in India, and criminal proceedings can be initiated against the accused. Such enforcement mechanisms are expected to boost the protection of marks in India and reduce infringement and contravention of trademarks. In the case of ICC Development V. Arvee Enterprises and Anr, it was said that for a plaintiff to find success in his claim, he must prove that there was "likelihood of confusion" in public mind that the defendants were sponsors or license of world cup.

Conclusion

Ambush marketing is not a new phenomenon but lately due to increase in sports events at the world level, ambush marketing has been making headlines. In order to avoid ambush marketing, organizers are making an effort to make such rules or guidelines which gives them the power to take action against the wrongdoer. Government needs to enact specific legislation to prevent ambush marketing or provide opportunity to co sponsor the event for a lesser payment sponsorship in a limited manner. But MNC’s should not be allowed to misuse the lesser payment co-sponsorship. By that time, protection may be provided through, Competition act, Unfair Trade Practices provision of the Consumer Protection act and also through specific IPR legislations.