Brazil moves fast to fight ambush marketing

Ambush marketing is a form of marketing in which companies that do not have any relationship to an event attempt to benefit from its prestige and status, without the consent of the organisers and/or sponsors.

In this context, it is important to emphasise that the Brazilian doctrine avoids a literal translation of ambush marketing, because the term ‘ambush’ has a pejorative meaning in Portuguese.

Consequently, it makes the distinction between marketing of lawful and unlawful association. In our opinion, ambush marketing is a practice that violates the rights of third parties and should be understood as negative behaviour and/or conduct.

The reasons for the continual growth of this practice are obvious—the large numbers of the public that participate in these events, as well as the huge audience provided by televised broadcasts and other media.

For example, it is estimated that the Beijing Olympic Games was watched by 4.7 billion people, approximately 70 percent of the global population, exceeding the 3.9 billion spectators for the Athens Games and the 3.6 billion for the Sydney Games.

Through ambush marketing, a large number of potential consumers can be reached at a reduced cost, while the official organisers and sponsors spend enormous amounts of money to stage the event.

Ambush marketing is based on the simple desire for the advertising promotion of a company, activity, product or service, with the intention of enjoying the fruits of the prestige, status and values of an event, or to create the false impression of legitimate association with the event. In economic terms, the cost/benefit relationship is ideal for the freeriders—maximum recognition and visibility through minimal investment.

This practice can take several different forms, including the unauthorised reproduction and imitation of signs, symbols and denominations associated with an event. It can also be found in the disclosure and promotion of similar slogans to the event and also through the sponsorship of televised broadcasts and interviews with athletes, among others.

Nevertheless, despite the resiliency, versatility, dynamism and the sinuosity found in ambush marketing, the practice can be defined under three broad areas: advertising promotion; appropriation of the prestige and status of the event without the authorisation of its organisers and its sponsors; and the creation of a false impression of legitimate association or participation in the event.

While ambush marketing is most common during large sporting events, it can also be seen in other contexts, such as musical shows and fashion parades.

Due to the astronomical amounts involved and the need to guarantee a return on this investment through the visibility and recognition of its brands by the consumer, the organisers of the event, and especially the company sponsors, need to be assured that a minimum scope of protection is provided against the practices of ambush marketing.

According to public information, in the case of the Olympic Games, the revenue arising from the sponsoring companies actually represents the second-largest source of revenue for the event, only behind television broadcasts.

For the Beijing Olympic Games, it was estimated that the amounts invested in advertising by the 12 largest sponsors of the event reached approximately $866 million. Coca Cola spent between $75 and $90 million, and Adidas spent $250 million.

When it comes to protecting intellectual property and the symbols of official sporting bodies, it is important to emphasise that Brazil is already a signatory to the Paris Convention for the Protection of Industrial Property, TRIPS (Agreement on the Trade Related Aspects of Intellectual Property) and the Treaty of Nairobi, all of which are incorporated in Brazilian legislation.

The recent publication of Law 12,035/09, which established the Olympic Act in the ambit of federal public administration, reinforced the entire legal framework of protection in this context. The act aimed to provide guarantees for the candidature of the city of Rio de Janeiro, just before its selection as the host of the 2016 Olympic and Paralympic Games.

"Brazil already has legal provisions that allow effective combat against certain types of ambush marketing."

It is one more indication of the concern of the Brazilian government to restrain the practices of ambush marketing. Law 12,035/09 is in harmony with that already established in the Law of Industrial Property. This prohibits the registration as a trademark of a name, award or symbol of an official or officially recognised sporting, artistic, cultural, social, political, economic or technical event, as well as an imitation liable to create confusion, except by authorisation of the event’s promoter.

This impedes the use of expressions such as ‘Olympic Games’ and its variations or abbreviations, as well as the use of any typography or any other symbol that refers to the 2016 Olympic Games, such as the emblem, the flag, the hymn, the slogan, the trademarks, the mascots, the torches and other symbols.The law that established the Olympic Act, as well as other state regulations related to the Olympic Games and the football World Cup, were well received by all those involved in these events.

In fact, Brazil already has legal provisions that allow effective combat against certain types of ambush marketing in sporting events. As well as the abovementioned regulations, Law 9,615/98, also known as Lei Pelé, for example, prohibits the registration and use of a trademark that includes the Olympic symbol, hymn and slogan for any purpose.

The Copyright Law, in turn, allows for the protection of any figure, symbol or creative element, even if it is not registered as a trademark. Nevertheless, it is important to note that the ambit of protection conferred by these regulations is restricted to a specific type of ambush marketing, in which there is the unauthorised reproduction of trademarks, symbols or elements related to sporting events.

Undoubtedly, the marketing of association occurs using other methods and is not only practised in sporting events. In this context, ambush marketing can also be combated by applying the Civil Code provisions, which govern civic responsibility and also expressly forbid enrichment without cause.

However, these regulations are generic and do not precisely describe the essential requirements for combating ambush marketing. Also, they do not establish special sanctions to inhibit the practice and do not encompass all the situations in which the practice exists. In certain cases, the rules of protection against unfair competition and parasitic exploitation, which are provided in Brazilian legislation, can be applied.

Although these rules can be applied to certain types of ambush marketing, it is certain that this practice goes beyond the obvious cases of unfair competition or even the doctrine defined as parasitic exploitation. Furthermore, in the Brazilian Code of Self-Regulation, there is an express reference to the practice:

“This Code condemns the unlawful and illegitimate advertising benefits obtained by means of ‘piggybacking’ and/or ‘ambushing’, through the invasion of the editorial or commercial space of the communication vehicle.”

However, it is important to remember that the Brazilian Code of Self-Regulation is an advertising industry agreement with no legal force. It is only effective for its associates, but even so, the majority of its decisions are administratively observed.

The sanctions for infringing its rules are limited to a warning and the publication of the National Council of Advertising Self-Regulation’s determination, in case the infringer does not observe the proposed remedies. The small number of judgments dealing with ambush marketing means it is difficult to define the position of the Brazilian courts.

Brazil has a wide-ranging regulatory system designed to repress the practices of ambush marketing. However, such protection is still limited as the specific protection is designed for trademarks associated with the Olympic Games and the World Cup, and not other events. Also, the practices of ambush marketing go beyond the reproduction, imitation, registration and use of these trademarks.

Therefore, with the staging of the World Cup in Brazil in 2014, and the Olympic and Paralympic Games in Rio de Janeiro in 2016, there is both opportunity and motive for the extension of legislative and educative measures in the advertising sector that are capable of providing an effective and appropriate protection against ambush marketing.

For this, it is essential that the official bodies (the Brazilian Olympic Committee, the International Olympic Committee, the Brazilian Confederation of Football, the International Federation of Association Football, etc.), the event organisers, and the executive, legislative and judicial arms of the government, as well as the representative bodies of civil society, are united. The negative experiences of the past—in Brazil and in other countries—cannot deter the investment required for the successful staging of these events.

Accordingly, it is certain that there is a need for all the parties involved in the staging of events, whether cultural or sporting—especially the large sporting events to be held in Brazil—to have efficient legal instruments to inhibit, or at least to discipline, the practice of ambush marketing.

Paulo Parente Marques Mendes is a senior partner at Di Blasi Parente Vaz e Dias & Associados. He can be contacted at: paulo.parente@diblasi.com.br