Event ambushing a growing issue

An ambush marketing stunt in which 36 women wore orange dresses to a World Cup match caused a social media surge. Picture:AFP/Getty

After all the build-up, Scotland will finally host the Ryder Cup in just over a fortnight’s time. Golf fans and anyone else keen to see Scotland make the most of this international showcase event are keeping fingers crossed for dry conditions over the four days of competition.

While decent weather may also be a concern of the tournament’s official sponsors – including the likes of Rolex, BMW and Johnnie Walker, all of which have paid substantial sums to be linked to this prestigious event – they could be more worried about having their message diluted by the prospect of ambush marketing activity throughout the event.

Ambush marketing can be carried out by companies, large or small, which devise opportunistic and often ingenious ways to connect their product or service to high-profile events without paying for the privilege. As the host of high-profile, international sporting events including the Olympics and Commonwealth Games, the UK has witnessed the rise of this phenomenon in recent years.

In terms of addressing the legal ramifications of this activity, it’s useful to distinguish the different types of ambush marketing. Broadly speaking, it can be broken down into “ambush by association”, “ambush by intrusion” and “opportunistic ambushing”.

The first of these occurs when the non-sponsor seeks to mislead the public that it is associated with an event or a participating team or player.

Betting firm Paddy Power provided an effective example of this during the 2012 Olympics when it set up and sponsored an athletics event in the small French town of London. Through a series of billboard adverts across the UK capital Paddy Power then proclaimed itself to be “official sponsors of the largest athletics event in London this year”. This stunt left London Olympic officials red-faced as they were powerless to do anything about it.

In some cases of ambush by association, however, legal redress can come through the courts, using the more traditional forms of IP protection, although only the most flagrant of abuses have tended to fall foul of protective standards such as trademark or copyright laws. Therefore pursuing an infringement as “passing off” is the most common route.

To succeed in this, the event organiser needs to prove a number of points: firstly that it had established a reputation or goodwill in the event in question; secondly that the alleged ambusher has confused the public about its connection with the event; and finally, that the organiser has suffered damage as a result.

“Ambush by intrusion” occurs when the non-sponsor seeks to gain prominent brand exposure within the event’s control area, targeting the audience in the stadia and in broadcast media. Bavaria Beer demonstrated this at the 2010 World Cup in South Africa, placing 36 attractive women clad in short orange dresses bearing the company’s logo in the stands at the Holland vs Denmark match. Television cameras picked them out in the crowd and recorded security staff ejecting them from the venue, a move which led to a huge social media surge resulting in Bavaria Beer stealing a march on Budweiser, the tournament’s official sponsor.

This kind of ambush has been dealt with by trespass law (for non-ticket holders), or breach of contract law with ticket terms which explicitly forbid this type of activity.

Finally there’s “opportunistic ambushing” which can occur on the back of a topical incident at an event. When the flame expired during the Sochi 2014 Winter Olympics torch relay, media cameras captured a Zippo lighter being used to re-light the torch. Despite the fact they were not official sponsors, Zippo’s marketing team latched on to the moment using social media channels to highlight the moment.

There are grey areas and a healthy debate about the legalities surrounding opportunistic ambushing: is this sort of activity actually detrimental to the exclusivity of official event sponsors, should it be penalised at all and, if so, what form should this take?

While there are some means of legal redress, the problem for legitimate event sponsors is that there is currently no specific legislation in the UK which actually outlaws ambush marketing. It’s a huge challenge to those who stage major events which rely on significant sums of corporate sponsorship to make them viable. Many companies engaging in ambush marketing do so with an increasing level of sophistication, going to increasingly ingenious lengths to position themselves just on the right side of these laws.

As a result, the organisers of the Ryder Cup may find themselves facing a task even tougher than Team Europe’s one of retaining its title at Gleneagles later this month.

• Craig Stirling is a partner in commercial law firm Davidson Chalmers www.davidsonchalmers.com