Article by Avv. Felix Hofer*

In less than two decades the practice known as ambush marketing has resulted in a major threat to IP rights. All events, be it entertainment or sports, followed by a significant audience have to cope with those smart guys, not willing to afford costly financial involvement as sponsors, but keen on benefiting from the event's resonance. Small companies and start ups as well as big players have been trying the free foot board ride on the showcase vehicle of events implying global brand exposure.

Those tricks obviously led to clashes with the events' organizers and official sponsors, determined in fiercely defending their investments. During the years the conflict between opposite interests has increasingly heated up and, when traditional legal action, as trademark and copyright protection or claims for unfair competition practices, fell afoul of granting sufficient results, a call for stricter measures arouse. Therefore all major sports events are nowadays backed by specific provisions and strong sanctions, aimed at closing the system's previous loopholes and at assuring special rights to the official sponsors. 

The specific laws usually provide protection for the events' logos and their derivatives and ban wording implying undue association with the event; sometimes they contain explicit reference to ambush marketing as an illicit practice when resulting in not authorized activities performed for profit in parallel to those properly licensed. The Organizing Committees of the upcoming Olympic Games in Beijing, Vancouver and London have already begun – years ahead of their events' start – to prepare for efficiently fighting ambush marketing. Since Beijing was selected as the Host City for the 2008 Games, the Chinese Government passed a special Regulation (which came into effect in April 2002) for protecting the Olympic symbol; the Municipality of Beijing issued additional provisions for the same purpose.

Canada protects the symbols of the Vancouver Games as well as a comprehensive list of specific marks and delivers detailed information on banned ambush marketing and sponsors' brand protection on the VANOC's official website. The Organizing Committee is also seeking special legislation from the federal government in order to increase IP protection.

The London Olympic Games Act 2006 received royal assent in March 2006 and protects, aside of the traditional symbols, also definitions referring to or implying association with the games; it sanctions infringement as a criminal offence and provides fines as well as personal restrictions (arrest).

Nevertheless, once a new rule is set, somebody always finds a way to go around it. Recent sports events have been targeted by the smart guys as always and in some cases they again succeeded in going away with their tricks.

During the recent Soccer WC in Germany strong efforts were made and extensive controls were performed in order to prevent malpractice on official sponsors' rights. Action was taken on more than 2.500 infringements, but German national air carrier Lufthansa – not an official sponsor - succeed in associating the company's brand to the Soccer WC by depicting 40 of its planes with a football nose. 

With respect to the same event a retail store in Bangkok was noticed promoting a local chips brand featuring German sausages and a football on the packaging, while the Swiss Tourism Board tried to attract the so-called “Soccer Widows” to Switzerland - while their male partners indulged in soccer madness - through a seducing invitation: “Dear girls. Why not escape during the summer’s World Cup to a country where men spend less time on football and more time on you?”

During the 2006 Winter Olympics brand police taped almost every logo not referring to an official sponsors, but a big US company resulted successful in associating itself with the Games by closing a deal with Italian Railway – month ahead of the event – which involved wrapping the trains bringing fans to the sports venues into its corporate logo.

The Organizing Committee, even fuming about the smart move, decided to not take action as the perspective for a success in court didn’t appear very high.

So, despite strong opposition from event organizers and sponsors, ambushers never fall short of new ideas allowing them to successfully weasel around their attractive preys.

*Felix Hofer is a senior partner of Hofer Loesch Torricelli, a law firm based in Firenze (Italy); he advises on IP rights, advertising and marketing law.

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