The Tokyo 2020 Olympic Summer Games officially kick-off today. Taking place a year later than scheduled as a result of the pandemic, and amid no small amount of controversy, the Games will look a little different than previous years. What is unlikely to change, however, is the global attention the Games inevitably attracts and the associated draw for brands seeking to increase their exposure to consumers globally.
The most recent Summer Games in Rio 2016 reached a global television audience of 3.2 billion people. Such extensive reach makes the Olympics a valuable marketing opportunity for companies around the world, including in Canada. But brand owners must play by the rules when it comes to trading on the popularity of the Games, or risk finding themselves offside.
What is "Ambush Marketing"?
Ambush marketing refers to the strategies used to gain significant advertising and marketing benefits through unauthorised and unlicensed association with a particular event. Widely promoted and watched events like the Olympic Games are a prime target for ambush marketing since there is value in linking a brand to such events and their associated goodwill.
The International Olympic Committee (IOC) offers official partnership to corporations in exchange for financial support and in-kind contributions. Corporations that come to an agreement with the IOC are granted the exclusive rights to use Olympic Games-related intellectual property (IP) and to marketing and advertising opportunities. Since Olympic sponsorship is expensive, some companies seek to avoid the financial obligations while still benefitting from the Olympic advertising spotlight by applying ambush marketing techniques.
Capitalizing on the popularity of the Olympics and similar events by way of ambush marketing can occur primarily in two ways:
- Ambush marketing by association occurs when a brand owner seeks to associate itself with an event - either directly or indirectly - by, for example, increasing advertising on television shortly before, during or directly after an event, or using an event name or mark without permission. A well-known example arose during the 2013 Super Bowl, when power went out in the Superdome in the third quarter of the game. OREO cookies seized the opportunity by tweeting the message "Power Out? No problem" which was accompanied by an ad showing a single, starkly-lit OREO cookie beside the caption "You can still dunk in the dark". The tweet quickly went viral allowing OREO to capitalize on the event without being an official sponsor.
- Ambush marketing by intrusion occurs when a brand owner places their own marks or logos in the same physical space as an event in an attempt to increase media exposure, or to be seen by event attendees. Examples include using a branded plane or blimp over the event airspace or handing out branded products to eventgoers during the event. For example, at the Summer Games in Rio 2016, the activewear brand Under Armour installed branded outdoor exercise areas along Copacabana Beach, which was the location of many of the Olympic events.
Ambush marketing can have considerable consequences for all stakeholders. The partnership between official sponsors and the Olympics, for example, is expected to provide benefits for both sides. Organizers of the event generate revenue from selling official sponsorship rights which go towards supporting the event. Official corporate sponsors of the event make a significant investment to secure the right to exclusivity.
When ambush marketers associate themselves with an event without paying to be official sponsors, the value of sponsorship is diminished. As a result, future commercial sponsorship becomes less appealing. Where global sporting events and the like rely heavily on corporate sponsorship for a significant portion of their funding, ambush marketing indeed becomes a serious matter.
Regardless of its form, ambush marketing has become increasingly problematic for events like the Olympic Games and has driven organizers to push for legislative change in countries hosting global sporting events.
Ambush marketing and the Olympic Games
In Canada and abroad, ambush marketing is not easily captured by traditional laws protecting intellectual property. While independent causes of action, such as trademark infringement, passing off, and false or misleading advertising are available, few, if any, adequately address ambush activities. Those that do are met with limited success.
Lacking protection from general intellectual property and advertising laws, organizers for global events like the Olympic Games have pushed for legislation to specifically address ambush marketing concerns.
As a result, anti-ambush marketing legislation was first introduced for the Sydney Olympic Games in 2000 with the enactment of the Sydney 2000 Games (Indicia and Images Protection) Act 1996. Many subsequent host countries, including Canada with its Olympic and Paralympic Marks Act (OPMA), have since followed suit. The IOC now requires that host cities put in place appropriate legislation dealing with ambush marketing practices. Ambush marketing legislation has also since expanded outside of the Olympic context.
Canada's OPMA, introduced in 2007 in anticipation of the 2010 Vancouver Winter Olympic Games, is a good example of what legislation seeking to address ambush marketing can look like. Section 4(1) of OPMA, for example, provides that during the prescribed period, persons may not "in association with a trademark or other mark, promote or otherwise direct public attention to their business, goods or services in a manner that misleads or is likely to mislead the public" into believing:
- the person's business, goods or services are approved, authorized or endorsed by an organizing committee, the Canadian Olympic Committee ("COC") or the Canadian Paralympic Committee ("CPC"); or
- a business association exists between the person's business and the Olympic Games, the Paralympic Games, an organizing committee, the COC or the CPC.
Schedule 3 of OPMA provided a list of expressions that were used to determine whether a person had engaged in ambush marketing contrary to Section 4(1). At the time of the Vancouver Olympic Games, such expressions included: Games, 2010, 21st, Tenth, and Medals, among others.
Interestingly, section 6 of OPMA also lowered the threshold for obtaining injunctive relief against ambush marketers, removing the requirement for an ambushed party to prove that they will suffer irreparable harm.
While the only period presently prescribed under the Olympic and Paralympic Marks Regulations is the months surrounding the 2010 Games, it is open to the Canadian legislature to prescribe additional periods in the future.
That being said, other prohibitions in the OPMA are not time limited. These include the prohibition against the adoption or use in connection with a business, as a trademark or otherwise, of an Olympic or Paralympic mark or a mark that so nearly resembles an Olympic or Paralympic mark as to be likely to be mistaken for it (s. 3(1)). This means that a company can still contravene the OPMA today by using an Olympic mark without permission.
For the Tokyo Games, the national government of Japan pledged to the IOC that it would protect Olympic-related intellectual properties and work to prevent ambush marketing through its Trademark Law, the Unfair Competition Prevention Law and the Copyright Law.
Tips for organizers of events
Organizers and official sponsors of events for which licensed advertisers expect exclusivity will want to take steps to ensure that as little ambush marketing as possible occurs. Responding quickly to curtail the offending marketing should be the primary concern. Ideally a rapid response will minimize any potential damage to official sponsors and discourage the practice in future by likely offenders.
As such, upon becoming aware of any ambush marketing, organizers and licensed advertisers should immediately seek legal advice. There may only be a short window to mitigate the potential harm of ambush marketing, particularly in the case of limited-time events like the Olympic Games.
Tips for brand owners
Since the law surrounding ambush marketing is ever changing, companies might run afoul of ambush marketing rules despite best efforts to play fair.
If you or your business receives a "Cease and Desist" letter alleging ambush marketing, it is imperative to treat the matter seriously. In order to minimize potential difficulties, it is important to obtain expert legal advice as soon as possible. This will help to provide a full and complete assessment of your options to help you decide how to respond to the complaint.
Will ambush marketing be the same this year?
Whether the Tokyo 2020 Games will attract the same degree of ambush marketing as previous events remains to be seen since companies might think twice about associating their brand with the Games this year.
The event has been mired in controversy and is a polarizing topic in the host country of Japan, which is currently under a state of emergency due to the rising number of COVID-19 cases. Indeed, Japanese automobile manufacturer (and official Olympic sponsor) Toyota recently made global headlines by announcing that it will not air any Olympic-themed advertisements on Japanese television during the Games.
Some companies (who are not official sponsors) might wish to avoid both the legal and reputational risk of ambush marketing for an event that could garner negative attention.
In any case, ambush marketing remains somewhat of a grey area and what constitutes this type of marketing is constantly evolving so organizers should be vigilant and advertisers should tread cautiously.
For further information on this topic, or other Canadian marketing and advertising issues, please contact a member of our firm's Marketing & Advertising group.
The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.
