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Ambush Marketing in the Digital Age

With the Olympics and men’s football UEFA European Championships taking place next year, alongside a summer full of music festivals, brands will be keen to ensure that they fully-realise the benefits of their investment in sponsorships. However, not all brands will be gaining exposure through the traditional medium of activating sponsorships with athletes, teams, and tournament and event organisers.

Some brands try to associate themselves with competitions and festivals without incurring the cost of entering into sponsorship deals. This concept is often labelled ‘ambush marketing’, but the lines between ‘normal’ marketing activities and ambush marketing are becoming increasingly blurred.

Ambush by intrusion

Our sister blog, Sports Shorts, has covered ambush marketing on a number of occasions previously, including FIFA’s attempts to prevent ambush marketing at the 2018 FIFA Football World Cup. The concept of ambush marketing may bring to mind publicity stunts such as 36 young women attending a 2010 FIFA World Cup match between the Netherlands and Denmark while wearing matching clothing, bearing the brand of Bavaria (a Dutch brewery). A similar, perhaps more egregious, incident occurred recently in the Champions League Final, during which a woman wearing branded attire ran onto the pitch while the match was taking place. This type of ‘ambush by intrusion’ can generate headlines and draw the attention of worldwide TV/online audiences as well as those spectators present at stadium and other event venues.

Digital ambush marketing

In the digital age, brands are finding subtler ways of associating themselves with events, athletes, teams and competitions. Live sporting events remain ‘appointment viewing’ even in a media landscape that is largely moving towards on-demand content. The big audiences that tune into major tournaments are an almost irresistible target for marketing teams. Similarly, music festivals attract devoted audiences (often with disposable income) and have a certain cultural cachet, which makes it very appealing for brands to be associated with them.

The advent of social media has provided brands with platforms that enable them to respond quickly to events at competitions and festivals, which in turn helps them to capitalise on the prevailing mood of their followers. The shared experience of festivals, world cups and similar events means that brands can achieve their desired impact without the need to refer directly to the tournament or festival taking place. This helps to mitigate the risk of infringing the intellectual property rights of event organisers, performers, athletes, teams and sporting federations.

There were numerous examples of this type of marketing during the 2018 FIFA World Cup. For example, retail brand Wish staged a well-received campaign, which focused on the activities of some big players who would not be present at that tournament, such as Gareth Bale and Gianluigi Buffon. Such high-profile competitions provide advertisers with fertile ground to carry out this type of marketing campaign.

Keyword advertising

As the name suggests, digital ambush marketing is not limited to traditional advertising media. Keyword advertising is one of the most commonly used tools in marketing. Generally speaking, it is permissible for a brand to utilise the name of another brand or a trade mark owned by another brand in keyword advertising, provided the ad satisfies certain conditions such as the average consumer being able to ascertain the origin of the advertised goods or services. This provides a loophole of sorts in relation to the monopoly rights afforded to the proprietors of registered trade marks. Advertisers have taken advantage of this by marketing to consumers using keywords associated with particular events or competitions. Purchasing such ad inventory allows brands to connect with their customers or potential customers without going to the expense of entering into an exclusive sponsorship deal.

Is any publicity good publicity for minority sports and niche events?

For stakeholders in less popular sports and niche or up-and-coming festivals/events, there is some truth to the idiom that any publicity is good publicity. In the context of digital ambush marketing, such activity is unlikely to be bad publicity, as brands primarily seek to associate themselves with a festival or competition in a positive manner rather than to criticise it.

Marketing campaigns centred on an up-and-coming festival or minority sport are likely to be beneficial to stakeholders, by boosting awareness if nothing else. Put simply, if a brand’s marketing campaign results in its followers watching more of a competition or event, it will boost television and online audiences, which in turn will increase the value of the broadcasting rights for that competition/event and associated sponsorship/advertising rights. For events that aren’t broadcast, a brand’s marketing campaign may generate more impressions around official hashtags or social media accounts, providing event organisers with ammunition when seeking to negotiate sponsorship deals for subsequent editions of the festival/event.

The downsides of digital ambush marketing

It is, perhaps, easier to view light-hearted digital ambush marketing as a benign phenomenon when it only affects the upper echelons of wealthier sports or well-known events. It becomes less palatable for some viewers when it stunts investment in minority sports, the grassroots of rich games or up-and-coming events.

Sponsorships are an important part of the sporting eco-system, particularly in less-prominent sports, as the revenues help to improve facilities and pay for coaching and outreach programmes. The same is true for niche events, which often rely heavily on sponsorships to meet financial commitments to performers and suppliers. Digital ambush marketing, while perfectly legal (for the most part), can dilute the value of sponsorship rights as it undermines the exclusivity many sponsors expect. Naturally, if a brand is not sponsoring an event, competition, team or athlete, but obtaining the benefit of association with a competition or event, this has an indirect adverse effect on those stakeholders. The failure to invest directly in the event or sport in question may not go unnoticed by a brand’s followers, potentially exposing the brand to criticism for failure to put money into the coffers of stakeholders.

As such, while digital ambush marketing may be a clever use of a brand’s advertising budget, it is arguably more risky in the context of events that don’t generate significant sponsorship revenues.

Tips for brands

For brands considering engaging in practices that might be described as digital ambush marketing there are a few key questions to consider.

  1. Will the campaign use any registered or unregistered trade marks (or other intellectual property rights) owned by third party stakeholders? If so, there is a risk that the campaign will infringe the rights of a third party, which may result in legal action and associated adverse publicity.

  2. How will the intended audience react to the campaign? Of course, this can be difficult to gauge, but, given the potential ethical complexities associated with digital ambush marketing, an ill-judged marketing campaign can easily backfire.

  3. Does the campaign comply with applicable laws and non-statutory codes (such as the codes policed by the UK Advertising Standards Authority (ASA)?

  4. Is there any event or competition-specific legislation to consider? Some sporting organisations require host-countries to pass legislation, targeted at preventing ambush marketing, as part of the eligibility criteria for hosting competitions. This legislation can be far-reaching and may go further than pre-existing local laws.

This is not an exhaustive list of issues to consider and the risks will vary according to the content of the ad campaign and the particular event or competition in question. As such, brands should ensure they obtain legal advice prior to commencing an advertising campaign, which risks being categorised as ambush marketing.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume IX, Number 338

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About this Author

Carlton Daniel Intellectual Property Attorney Squire Patton Boggs London, UK
Partner

Carlton Daniel advises on intellectual property rights, commercial contracts and consumer regulatory law. He handles both contentious and non-contentious matters.

Carlton has a particular focus on providing advice to clients in the advertising, marketing and media sectors, and also to businesses operating in the food and drink, retail, automotive and tech sectors.

Intellectual property rights: Carlton has significant experience advising on the exploitation and protection of trade marks, designs, copyright, databases, confidential information and patents. As...

44 20-7655-1026
Chris Stevens-Smith, Squire Patton Boggs Law Firm, London, Intellectual Property Law Attorney
Associate

Chris is an associate in the Intellectual Property & Technology Practice Group, based in London.

Chris has experience in a range of contentious and non-contentious commercial and intellectual property matters, advising clients in the media, entertainment, sports, gambling and advertising sectors.

Chris has undertaken secondments at a leading commercial broadcaster and at one of Britain’s largest retailers. 

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