It sometimes seems that one of FIFA™'s main pre-occupations during the World Cup™ is brand management and ambush marketing. I thought it might be helpful to explore this concept of "ambush marketing" and how it impacts on the World Cup™ in South Africa.
There are a number of relevant and useful marketing resources which define the term “ambush marketing”. The following examples are particularly helpful in understanding this term:
Wikipedia:
Ambush marketing is a marketing campaign that takes place around an event but does not involve payment of a sponsorship fee to the event.[1] For most events of any significance, one brand will pay to become the exclusive and official sponsor of the event in a particular category or categories, and this exclusivity creates a problem for one or more other brands. Those other brands then find ways to promote themselves in connection with the same event, without paying the sponsorship fee and without breaking any laws.
The UK Government/Intellectual Property Office:
Ambush marketing generally occurs when one brand pays to sponsor a large-scale event (usually a sporting event) and a rival brand attempts to associate itself with the event. A marketing campaign takes place around the event but does not involve payment of a sponsorship fee to the event organiser.
The most notable example of ambush marketing occurred at the 1996 Olympic Games in Atlanta, when a sportswear company avoided paying a multi-million dollar sponsorship fee, but successfully mounted a marketing campaign by plastering the city in billboards, handing out free banners to spectators and erecting an entertainment centre in its own name overlooking the stadium. Though this prompted large sporting organisations such as FIFA and the IOC (International Olympic Committee) to adopt anti-ambushing strategies, ambush marketing has become more and more widespread, possibly because for some companies it is the only way to compete.
To protect official sponsors, event organisations can insist on certain criteria being fulfilled before a city or region are considered or awarded a major event.
Brandchannel.com:
Ambush Marketing Steals the Show Ambush marketing – a term often hissed in industry circles – occurs when one brand pays to become an official sponsor of an event (most often athletic) and another competing brand attempts to cleverly connect itself with the event, without paying the sponsorship fee and, more frustratingly, without breaking any laws. Ambush, or guerilla, marketing is as undeniably effective as it is damaging, attracting consumers at the expense of competitors, all the while undermining an event’s integrity and, most importantly, its ability to attract future sponsors.
The common theme is that an organization attempts to take advantage of the publicity around an event by directly or indirectly associating itself with the event despite not being a paid sponsor of the event concerned. By doing so the organization seeks to secure a similar benefit to that obtained by paid sponsors without incurring the associated costs. Doing so can also negatively impact on the relevant event’s branding and the organizer’s ability to secure paid sponsors for future events. This would almost certainly have a financial impact on events’ feasibility as they are modeled.
Legislation
The primary piece of legislation dealing with ambush marketing appears to be the Merchandise Act. The Merchandise Act’s purpose is:
[t]o make provision concerning the marking of merchandise and of coverings in or with which merchandise is sold and the use of certain words and emblems in connection with business.
The Merchandise Act deals with a number of mark and trade mark uses. The most pertinent section of the Merchandise Act is section 15A, is titled “Abuse of trade mark in relation to event” and provides as follows:
15A. Abuse of trade mark in relation to event
(1)
(a) The Minister may, after investigation and proper consultation and subject to such conditions as may be appropriate in the circumstances, by notice in the Gazette designate an event as a protected event and in that notice stipulate the date-
(i) with effect from which the protection commences; and
(ii) on which the protection ends, which date may not be later than one month after the completion or termination of the event.
(b) The Minister may not designate an event as a protected event unless the staging of the event is in the public interest and the Minister is satisfied that the organisers have created sufficient opportunities for small businesses and in particular those of the previously disadvantaged communities.
(2) For the period during which an event is protected, no person may use a trade mark in relation to such event in a manner which is calculated to achieve publicity for that trade mark and thereby to derive special promotional benefit from the event, without the prior authority of the organiser of such event.
(3) For the purposes of subsection (2), the use of a trade mark includes –
(a) any visual representation of the trade mark upon or in relation to goods or in relation to the rendering of services;
(b) any audible reproduction of the trade mark in relation to goods or the rendering of services; or
(c) the use of the trade mark in promotional activities, which in any way, directly or indirectly, is intended to be brought into association with or to allude to an event.
(4) Any person who contravenes subsection (2) shall be guilty of an offence.
(5) For the purposes of this section 'trade mark' includes a mark.
[S. 15A inserted by s. 2 of Act 61 of 2002.]
The Merchandise Act defines a “trade mark” as a “trade mark as defined in section 2 (1) of the Trade Marks Act, 1993 (Act 194 of 1993), and includes a well-known trade mark contemplated in section 35 of that Act.” The Trade Marks Act, in turn, defines a “trade mark” as follows:
other than a certification trade mark or a collective trade mark, means a mark used or proposed to be used by a person in relation to goods or services for the purpose of distinguishing the goods or services in relation to which the mark is used or proposed to be used from the same kind of goods or services connected in the course of trade with any other person
The Trade Marks Act further defines a “mark” as follows:
any sign capable of being represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination of the aforementioned
The Minister of Trade and Industry declared the event to be a “protected event” in terms of the Merchandise Act in General Notice 683 of 2006 from the date of the Notice’s publication in the Government Gazette until 6 calendar months after the event’s commencement. The Minister drew specific attention to section 15A and subsections 2, 3, 4 and 5 (quoted above). The purpose for this declaration was stated as follows:
The "protected event" status is conferred on the World Cup on the understanding that the World Cup is in the public interest and that the Local Organising Committee (LOC) has created opportunities for South African businesses, in particular those from the previously disadvantaged communities.
The apparent rationale is to safeguard the event’s anticipated economic benefits for South African businesses.
FIFA™’s trade marks
A document titled “2010 FIFA World Cup South Africa™ - FIFA™ Public Information Sheet (a guide to FIFAʼs Official Marks)” (“the guidelines”) list a number of FIFA™’s “Official Marks” or trade marks which it has registered in relation to the event. These trade marks include a number of graphical and textual trade marks. The textual trade marks include the following:
- 2010 FIFA World Cup South Africa;
- 2010 FIFA World Cup;
- FIFA World Cup;
- World Cup;
- 2010 South Africa
- South Africa 2010 or SA 2010 or ZA 2010.
The guidelines note that the trade marks listed do not constitute a “full list of FIFA™’s trademarks in relation to the 2010 FIFA World Cup™” and that a full list of FIFA’s trade marks may be obtained through an appropriate trade mark search.
The guidelines also set out a number of examples of so-called “Unauthorised Association” with a FIFA™ trade mark. In the context of “informational editorial use” (the appropriate category given the report’s nature), the guidelines state that “any legitimate editorial use does NOT create an Unauthorised Association” with FIFA™’s trade marks. In contrast, the guidelines further state the following:
“Infomercial/advertorial”: there is no legitimate justification for the commercial use or presentation of editorial content (“Infomercial” or “Advertorial”) by third parties using an Official Mark (such as emblems, words, slogans, event titles, etc.) as this creates an Unauthorised Association.
Putting it all together
So when it comes to ambush marketing in the context of the World Cup™ the central question is whether the brand being promoted is sanctioned by the event organiser, in this case FIFA™. If the brand being promoted is not sanctioned by the organiser, well that promotion is most likely a form of ambush marketing.
This issue came up recently when Bavaria arranged for some ambush marketing of its own at the Netherlands vs Denmark game. According to The Daily Maverick:
The two women were arrested on Wednesday for their part in Dutch brewer Bavaria’s ambush marketing stunt on Monday last week. At the Netherlands vs Denmark game, 36 women, initially dressed in Danish supporter gear, stripped down to orange minidresses, which featured a (miniscule) Bavaria logo.
Nieuwpoort and Castelein were charged in terms of the SA Merchandise Marks Act. As Bavaria is not an official World Cup sponsor, it is not allowed to promote its brand in connection with the tournament.
While the purpose of these measures is largely to discourage ambush marketing may be to protect significant investments in event-related marketing and branding, preventative measures like FIFA™'s heavy handed approaches have a Streisand Effect and only give the offending brand even more publicity.
In the Bavaria case the Bavaria logo is barely noticeable from the photo in The Daily Maverick's article and while the extent of the unauthorised marketing shouldn't be an issue, per se, event organisers should carefully weigh their options when responding. Arresting some of the women involved in the Bavaria campaign highlighted the Bavaria brand and brought a disproportionate amount of attention to the case, as is evidenced by the 50 members of the press who were waiting at the Johannesburg Magistrates Court to cover the event. This was almost certainly not FIFA™'s intention.
As The Daily Maverick's Kevin Bloom and Theresa Mallinson pointed out -
Of course, the real winner in this scenario is Bavaria. The brewer has gained more marketing mileage from its initial ambush concept than it could’ve dreamed of – all due to Fifa’s inept handling of the incident. Talk about scoring an own goal.
Update: Also be sure to read Chris Moerdyk's article on BizCommunity titled Kulula is outwitting FIFA at every turn for a perspective on Kulula's controversial campaign.
Image credit: Ambush-protected vehicle by The U.S. Army licensed under a Creative Commons Attribution 2.0 license
My first experience with commercial legal practice as a candidate attorney was very much behind the scenes preparing documents, running around town delivering and picking up documents and attending meetings with my principal. It was quite a learning curve in those first two years and that learning curve hasn't flattened out yet after over a decade out of law school in law firms. What I find now is that I am still learning more about how to practice law, develop better relationships with clients (and sometimes how those relationships can be soured) and how to run a better law firm. Oh, there is also all that law which keeps changing, especially in my area of expertise.
The 
