With plenty of brands looking to take advantage of the football this summer, Poonam Majithia from CMS UK’s intellectual property team revisits the rules around ambush marketing.
As the world’s most watched sports event, the FIFA World Cup no doubt provides brands with the inspiration and opportunity to create football-themed marketing and advertising campaigns, promotions and competitions. As we approach the start of this year’s tournament, we take a look at what non-sponsor brands can do to ensure that they do not fall foul of FIFA’s World Cup ambush marketing rules.
Battle of the sponsors
Sponsorship is clearly an important revenue stream for the World Cup, with FIFA having generated $1.6 billion from these exclusive official associations during the previous tournament in 2014. In addition to the official World Cup sponsors, sponsors of the participating national teams and individual players will also be looking to exploit their exclusive associations to engage in brand-enhancing marketing activities. For instance, Brazil’s star footballer Neymar is believed to have 39 sponsorship deals across 26 industry categories including in electronics, toiletries and the airline industry.
What is ambush marketing?
To protect the value of these sponsorship arrangements, FIFA and other World Cup participants will be taking steps to prevent “ambush marketing” by non-sponsor brands.
“Ambush by intrusion” involves non-sponsors carrying out unauthorised marketing activity at the sports event itself in the hope that the marketing will be noticed by spectators at the event and viewers at home. However, stunts such as a group of Dutch women entering a stadium wearing revealing orange outfits paid for by a non-sponsor brewer are likely to be the exception rather than the norm.
A more common activity is “ambush by association” which is when a brand attempts to advertise in a way so as to create an association with the sports event in question. The desired effect is for the non-sponsor to enhance brand recognition and make the public believe that they are an official partner without paying any sponsorship fees.
With the continued significance of social media platforms, online ambush “by association” has become particularly hard for rightsholders to police, especially with the increase in popularity of temporary publishing channels such as Snapchat and Instagram stories.
What legal tools are used to stop ambush marketing?
Intellectual property rights
FIFA has a large global portfolio of trade marks which include (among others registrations in the UK and EU for “Russia 2018”, “Football World Cup”, “FIFA World Cup”, “World Cup 2018”, various World Cup logos and the World Cup trophy.
The Football Association has registered trade mark protection for the England National Team’s iconic “Three Lions logo”. Famous players are also increasingly relying on trade mark protection – Cristiano Ronaldo has for example his well-known “CR7” nickname registered as a trade mark in various jurisdictions. Unauthorised use of these trade marks or, in certain circumstances, similar signs to the trade marks can entitle FIFA or the relevant rightsholder to bring a claim for trade mark infringement.
Even if not using the official World Cup marks or, a national team or a player’s trade mark, non-sponsor brands should be careful that marketing campaigns in the UK do not attempt to leverage the goodwill or “reputation” of these brands to misrepresent an association with the event or relevant rightsholder. Re-creating the “look and feel” of the World Cup branding or of a connection with a national team or player could lead to a claim of passing off.
Rightsholders will also be relying on copyright and design rights which will subsist in the various visual graphics associated with the World Cup such as fonts, logos, mascots, imagery and on-screen graphics.
Russia has introduced Federal Law FZ-108 especially for the World Cup, which makes it an offence to create an unauthorised association with FIFA or the World Cup when marketing goods or services in Russia. The protections afforded to FIFA under the World Cup Law are extensive and are intended to cover non-sponsors’ marketing associations even when FIFA’s trade marks are not used.
FIFA’s “soft” guidelines
FIFA has also issued a set of guidelines on the use of FIFA official trade marks during the World Cup (here). Although these are not legally binding, the guidelines provide an indication of the types of commercial activity that FIFA is likely to monitor and enforce against.
Non-sponsor advertisers should be aware of the UK Codes on Broadcast Advertising and Non-Broadcast Advertising, Sales Promotion and Direct Marketing. If advertising implies that the brand or its goods or services are officially associated or endorsed by a World Cup rightsholder, it may be considered to be misleading in contravention of the Codes.
Tips for steering clear of trouble
Non-sponsor brands should avoid using rightsholders’ trade marks and making express World Cup references. Campaigns themed generally around football, Russia or a summer of sport are unlikely to cause problems provided that they do not strongly imply an official association with the World Cup or another rightsholder. This is more likely where a number of themes are combined together.
One well-remembered marketing post from the 2014 World Cup, came from Snickers which exploited Luis Suarez’s infamous bite on Italian defender Giorgio Chiellini by publishing a picture of a Snickers bar on social media with the tagline “More satisfactory then Italian”. The post did not use any official marks or imply an official association.
Brands that are activating a sponsorship at the World Cup should be mindful of conflicts with other sponsors. It was reported that official World Cup sponsor Hyundai previously received a cease and desist letter from the Brazilian football federation regarding an advert which they considered focused too much on the Brazil team rather than the World Cup generally, much to the ire of their sponsor Volkswagen.
Finally, advertisers should also be particularly cautious when advertising in Russia during the World Cup given the wide scope of the World Cup Law.