Coupe du Monde de Football : attention au “ambush marketing”

The Football World Cup is coming very soon to the great delight of all, and especially of the marketing teams which take advantage of this huge event to change their advertising and promotion.

However, any kind of communication or advertising referring to this event is very regulated, and unfortunately may be very risky for companies which believe they can gain customers by appealing to their passion for football – it may be qualified as “ambush marketing”.

The “ambush marketing” could be defined as “an attempt by a company to cash in on 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” – this definition could be completed by the IOC’s definition: “a planned attempt by a third party to associate itself directly or indirectly with the Olympic Games to gain the recognition and benefits associated with being an Olympic Partner”.

All the organizers of sport competitions, and especially the FIFA, are very aggressive when it comes to “ambush marketing”. There are many examples of their reaction towards ads/advertising campaigns, such as for instance when they ordered South African airline (Kulula Airways) to drop ‘ambush’ ad at the last world cup of 2010 in South Africa. This airline launched a campaign named “Unofficial National Carrier of the ‘You-Know-What’” – on the poster one could see the picture of a soccer ball and of a soccer player wearing football cleats.

The notion of “ambush marketing” is not a legal concept but a marketing practice – it is hence a very broad question and there is not any precise position of the case-law on this point.

The grounds of a possible action could be the following:

1 – There are some specific laws which have been issued by the concerned countries where the said events are taking place, such as for instance South Africa where the last World Cup was organized, in order to protect as much as possible the FIFA.

The Trade Practices Act of 1976 (amended in 2001), and more precisely its Section 9(d) forbids to: “in connection with a sponsored event, make, publish or display any false or misleading statement, communication or advertisement which represents, implies or suggests a contractual or other connection or association between that person and the event, or the person sponsoring the event, or cause such statement, communication or advertisement to be made, published or displayed”.

According to the FIFA, are prohibited under the terms of Section 9(d) of the TPA, ANY use of the FIFA’s registered logos/marks. The specialty principle of trademarks shall not be applied. The FIFA has then developed a method of combination of two groups of words. Hence, has been forbidden the use of the terms 2010 or Twenty Ten or World Cup combined with the terms Soccer or Football or any football image, South Africa or RSA or SA, or, for the first two, World Cup or the images/logos of the world cup.

FIFA has even managed to obtain from South Africa a very wide protection by having received the status of “protected event” from the state and the same protection than the one granted to the national emblems. Still during the World Cup of 2010, they have also managed to obtain from the South-African High Court a positive decision towards the use of the sign “2010 pops” with a packaging containing references to football and colors reminding the South-African flag by the company Metcash (North Gauteng High Court (Pretoria), October 1st, 2009, FIFA vs Metcash Trading Africa Limited).

It is worth noting that not only the FIFA is very active in reacting against “ambushers” but they have until now always obtained the support of the governments/states and their justice.

2 – As far as France is concerned, we summarized below the principles of the French Law which could be referred to by the FIFA in order to prevent such campaign/use of an ‘ambush’ packaging.

– The Intellectual Property Code when it comes to infringement of IP registered rights

– Article L. 333-1 of the Sport Code which states that: “Sports federations and organizers of sports events mentioned in Article L. 331-5, are the sole allowed to “utilize/exploit” the said events or competitions they organize. Any sports federation may grant to sports clubs, free of charge, the ownership of all or part of the audiovisual exploitation rights of the competitions or sporting events organized each season by the professional league that it created, as soon as these companies are involved in these competitions or sporting events. The transfer is valid for each of these companies.”

The only exception to this principle is when the reference to the event is necessary.

–      Article 1382 of the Civil Code: “Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.”

Ambush marketing can be considered as constituting a parasitism act. The “economic parasitism” can be defined as a behavior which aim is to unduly take advantage from the well-known character of the investments made by another undertaking. More precisely, the Paris Court of Appeal has defined it as such: “the fact that a person, for profit and unjustifiably, is inspired by or imitates an economic value of others, providing a competitive advantage, result of know-how, intellectual work and investment (…)”.

Further, the Court of Appeal stated that such parasitism act can be qualified even not in the presence of competitors (which is the case between an “ambusher” and the organizer of the sporting event).

Such a behavior can constitute a fault causing damages which shall be repaired under the terms of Article 1382 of the Civil Code. Applied to “ambush marketing”, the aim of the company is to make the consumer believe that it has a link with the event.

It has been decided by the French Courts that the use of a flame and a medal on the label of a wine bottle reproducing the Olympic colors, without using the protected symbols, does constitute a parasitism act (Paris Court of Justice, October 4th, 1996).

To conclude, and since the Football World Cup will take place soon, it is recommended to alert marketing teams of the risk to promote their products/services with references to this event.

As a few examples, there may be an issue with using an illustration of a football player wearing a uniform that resembles the official national football team uniform, or when using our country’s flag on packaging and promotional materials, etc…

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