It is well-known that sporting events of great international echo such as the 2020 European Football Championship that just ended with the victory of the Italian team, or the presently ongoing Tokyo 2020 Olympics - both postponed due to the Coronavirus pandemic - have significant commercial and economic value also thanks to sponsorship contracts by brand owners who aim to obtain a massive media recognition, guaranteeing themselves exclusivity against huge investments.
Hence, a more than tempting opportunity for those who want to "ride the wave" and gain visibility thanks to the so-called ambush marketing.
Ambush marketing is a phenomenon of undue and unauthorized parasitic advertising, conducted by economic operators who exploit a media event using their brand though not being among the official sponsors, and in this way succeed to gain visibility from the public and thus an economic profit without having sustained the significant sponsorship costs.
Undoubtedly, among the most famous examples of ambush marketing are the 1996 Atlanta Olympics, in which it was sufficient for Nike to publish photos of Ben Johnson, winner of two gold medals, posing with his medals and Nike branded shoes with which he had run and won. In this way Nike thus found itself indelibly associated with those Olympics even though the official sponsor was Reebok.
In Italy the matter is regulated by the recent law n. 31 of 2020, which under art. 10, par. 2, distinguishes a number of types of ambush marketing: in particular, ambush by association; the misrepresentation or statement in advertisement that an entity is an official sponsor of an event mentioned above; the promotion of one's own brand or other distinctive sign through any activity, not authorized by the organizer; the sale and advertising of illegally marked products or services.
The regulatory intervention has been necessary in order to introduce in advance specific provisions capable of regulating the issue in view of the upcoming Milan Cortina 2026 Olympic and Paralympic Winter Games and the ATP Turin 2021 - 2025 finals and, at the same time, protect the interests of those that could potentially be the ones harmed by ambush marketing - in particular event organizers, sponsors and the public.
However, the phenomenon of ambush marketing does not only occur on the occasion of sporting events, but it can also emerge in other events with great media coverage. A recent ruling by the Court of Milan, No. 2547/2020, for example, resolved a dispute that arose between two of the biggest Italian mobile companies, Tim and Wind, with reference to the aforementioned issue.
In short, in the said case Tim - in co-marketing with Disney - had entered into an agreement with an advertising agency called Armosia aimed at creating a promotional campaign during the release of the famous Star Wars film, thus creating a legitimate association with the well-known film. In the same period of the release of the Star Wars film, Wind decided to use one of the characters of the famous saga, the BB-8 droid, "in advertising and / or promotional campaigns for its products and / or services" without any authorization from Disney.
In particular, Wind launched a promotion (having the nature of a prize operation) offering the BB-8 toys, which in itself was not illegal, as it is of course allowed to resell products purchased from the legitimate owner and even advertise such resale, but what was considered not acceptable by Tim and the advertising agency was the particular positioning and prominence attributed to the BB-8 character in Wind's promotional material which inevitably made it the main attraction in Wind's advertising campaign, so that the latter seemed to have obtained a license from Disney exactly as the competitor Tim.
Therefore Tim and Armosia took action against Wind and requested compensation for damages. The Court of Milan recognised all the complaints raised by them declaring the occurrence of unfair competition, ambush marketing and copyright infringement for having unduly created a connection between Wind's brand, its products and services and the Star Wars saga.
The constant monitoring of promotional activities by the organizers and sponsors of sport matches or other events of great media coverage can be an excellent preventive tool, however counteracting ambush marketing often reveals to be a difficult ambition, if you do not act in good time and without the help of IP experts.
As a matter of fact, given the short duration that characterizes these events of great media coverage, it is useful to rely on Intellectual Property professionals, competent in assessing the most appropriate strategies in a timely manner and verifying the correctness of one's actions also at an advertising level.
In order to stop or prevent ambush marketing, IP attorneys can provide the most reliable advice both to the sponsors of media events for the possible defence of their economic interests and to companies that, unintentionally, intend to refer to the sponsors risking to interfere with a third party's sponsorship agreements or potentially with a third party's intellectual property rights.
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.
