Late last year Trade and Industry Minister, Rob Davies, announced that the government intended to declare the 2013 Afcon tournament a 'protected event' in terms of the Merchandise Marks Act. This means that the severe ambush marketing restrictions that characterised the 2010 FIFA World Cup will apply to the African Cup of Nations football tournament, which will take place between 19 January and 10 February 2013, and which will be coming to a city near you provided that you don't live in Cape Town – the host cities are Johannesburg, Durban Port Elizabeth, Rustenburg and Nelspruit.
But what exactly is ambush marketing? In essence, ambush marketing occurs when a business tries to get mileage out of an event that it hasn't sponsored. The most obvious way for a business to do this is to use the event's branding – the name, the logo, the strapline – in relation to its own product. This is, of course, illegal. In the first place, it is highly likely that the organisers of the event will have trade mark registrations for the event's branding, and that these registrations will cover a wide range of goods and services. So the unauthorised use of the branding will amount to trade mark infringement. In addition, the event's branding will in all likelihood be well known, with the result that consumers seeing it used in relation to the business's product will wrongly assume that the business is a sponsor of the event, or that there is at least some commercial relationship. So there will be passing off. This passing off will, in fact, also be an offence under the Trade Practices Act.
On top of all this, the business's conduct may well contravene the ambush marketing provisions of the Advertising Standards Authority (ASA) Code, which defines ambush marketing as follows: 'The attempt of an organisation, product or brand to create the impression of being an official sponsor of an event or activity by affiliating itself with that event or activity without having paid the sponsorship right fee or being a party to the sponsorship contract.' And last, but certainly not least, it is quite possible that certain aspects of the event's branding such as the official logo will be declared prohibited marks under the Merchandise Marks Act, in which case it becomes an offence to use them without authority – for the 2010 FIFA World Cup a whole host of words, phrases and images were declared prohibited marks, including the official World Cup logo, and terms like 'World Cup 2010', 'South Africa 2010' and 'SA 2010'.
So using an event's branding is an absolute no-no. Most businesses know this. But they do still like to create a link or at least an impression of a link with a big event. They try to do this subtly, without actually using the event's branding. This conduct is sometimes referred to as ambush marketing by intrusion. The sponsors of the 2003 Cricket World Cup put pressure on South Africa to take steps to put a stop to this sort of activity, and this is when the 'protected event' thing came in. The Merchandise Marks Act was amended by the addition of the controversial Section 15A, whose heading - 'Abuse of trade mark in relation to event' - gives a fair indication of what it is all about. Basically the section says that in the case of a 'protected event', it will be an offence for a business that is not an official sponsor of that event to 'abuse' its own brand. The business will be guilty of abusing its brand if it associates its brand with the event, or if its brand even alludes to the event, in a way in which the business derives publicity or promotional benefit.
Section 15A is very broad and it could conceivably cover all manner of things: a business arranging for an aircraft to fly over a stadium with a banner adverting its business; a radio station setting up an outside broadcast unit outside a stadium on match day; a business handing out t-shirts featuring its brand to people entering the stadium (obviously in the hope that the t-shirts will be shown on TV). The 2010 FIFA World Cup was, of course, a protected event and, as a result, FIFA was able to persuade Kulula to stop using an advertising campaign which featured the use of the term 'Unofficial National Carrier of the You-Know-What' together with stylized pictures of the Cape Town stadium, soccer balls, vuvuzelas, a soccer player, and the South African flag. In another well-publicised case, the authorities ejected a number of Dutch models from the Moses Mabida stadium during a match involving the Netherlands. Their crime: wearing orange t-shirts (the national colour), which was perceived to be a promotion for Bavaria beer, and a way of undermining official beer sponsor Budweiser.
In 2010 the authorities used municipal legislation to introduce certain practical measures to enforce the ambush marketing prohibitions - for example, exclusion zones were set up around stadiums and on roads leading to stadiums, and no branding other than official branding was allowed in these areas. Whether or not this will occur with Afcon 2013 remains to be seen. What is clear, however, is that businesses will have to be very careful before trying anything that might be construed as ambush marketing. As always, take advice!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.