Official sponsors clean bowled by ambush marketing

01-01-2011

Kavita Mundkur Nigam

Amidst the euphoria and fervour of the recently concluded ICC Cricket World Cup 2011 and the Indian Premier League cricket tournament, there is frenzy in the corporate world too, says Kavita Mundkur Nigam.

In a country thriving on cricket as its staple sport, corporate houses make a beeline to run promotional campaigns around such international sporting events, most of which are unofficial.

Ambush marketing is the appellation given to marketing strategies employed by companies to waylay the exclusive rights enjoyed by their competitors that sponsor international events. Ambush marketing is an opportunistic exploitation of an event in which a company gains exposure for its own brand and other insignia without the authorisation of the event organiser.

Instances of ambush marketing came to the fore in India during the 1984 Olympics and subsequently at the 1996 Cricket World Cup, where Coca-Cola was the official sponsor and its rival Pepsi introduced a promotional campaign with the tagline ‘Nothing official about it!’.

Some of the preferred strategies for ambush marketing are promotions where the prize is a travel package or ticket to the event; promotional giveaways using the official logo, words or symbols associated with the event; associating with the event without actually using the official logo, words or symbols; displaying banners in the stadium or causing a block of spectators attending an event to wear clothing that promotes a competitor product; using a sky banner or blimp over a stadium or venue, or in the viewable airspace surrounding the stadium or venue where an official match or event is being played; sponsoring broadcast of the event and counterfeit merchandising, hospitality and unlicensed ticket resales.

In the absence of specific legislation to counter such acts, affected parties have recourse to forms of intellectual property law such as trademark, copyright, design law and the law of passing-off. If the event organiser has a registered trademark that is used by an unauthorised sponsor, the event organiser can initiate proceedings for trademark infringement.

Similarly, where an event organiser has a logo designed in connection with a specific event, action can be initiated for copyright infringement for any unauthorised use or replication of the logo.

In order to make a claim for passing-off, the event organiser needs to prove that it has an established reputation or goodwill with reference to the event, that the third party has made a misrepresentation by way of its marketing thereby causing confusion amongst members of public and that it has suffered or is likely to suffer damage as a result of this confusion.

Although very few cases reach the courts, the Honourable High Court of Delhi dealt with the issues in the matters of ICC Development International Ltd v Arvee (2003) and ICC Development International Ltd. v Ever Green Service Station and Anr (2003). In the first case, the plaintiff was the organiser of the ICC World Cup. It owned and controlled all its commercial rights, including media, sponsorship and other intellectual property rights relating to the ICC events.

The plaintiff filed an application seeking a temporary injunction against the defendants, restraining them from publishing any advertisement associated with the plaintiff and the Cricket World Cup, and in any manner whatsoever passing off, indulging in unfair trade practices or misappropriating the plaintiff ’s publicity rights.

The defendants, Philips India Ltd and its authorised dealer, had inserted in advertising a pictorial representation of a ticket with an imagined seat and gate number saying ‘Cricket World Cup 2003’, and had used slogans such as ‘Buy a Philips audio system and win a ticket to the World Cup’. The defendants had not used the plaintiff’s logo or mascot in any of their advertisements or promotional campaigns.

The court could not find ingredients of passing-off, unfair trade practice or misappropriation of the plaintiff’s publicity rights and dismissed the application for an interim injunction. These findings were also followed in the case of ICC Development International Ltd v Ever Green Service Station and Anr (2003), which concerned similar issues.

A recent case was decided in favour of the affected party by the Delhi High Court. The Organising Committee Commonwealth Games 2010 Delhi v Gets Holidays and Anr, concerned the Commonwealth Games 2010 in India. The plaintiff was the owner of the trademark ‘Delhi XIX Commonwealth Games’, specifically created for the purpose of the Commonwealth Games in Delhi in 2010. The plaintiff also owned the domain name www.commonwealthgamesdelhi2010.org.

The defendant was using a domain name and trademark similar to the plaintiff’s.

In light of the facts of the case, the Delhi High Court granted a permanent injunction restraining the defendant, its directors, employees, officers, servants, agents and all others acting for and on its behalf from making, selling, distributing, advertising, exporting, offering for sale, and in any other manner, directly or indirectly, from using the domain name www.commonwealthgamesdelhi2010.org or operating any business, and making, selling, offering for sale, advertising and in any other domain names containing the trademark and/or any other deceptively similar trademark.

Considering the magnitude of the events, some international organising bodies such as the ICC have also developed a global rights protection programme involving pre-emptive steps, careful contractual drafting and proactive intellectual property protection. Private contracts containing anti-ambush marketing clauses are entered into with event organisers, sponsors, broadcasting organisations and players.

Further, event organisers often adopt measures such as securing advertising space in and around the stadia for official event sponsors. For instance, in 1996, the International Olympic Committee mandated that any city bidding to host the Olympics has to secure all advertising space within city limits for the official sponsors for the entire month in which games are to be held, or the bid would be denied. Similarly, advertising time slots on television are also sought to be reserved exclusively for official sponsors.

It has however been observed that despite its infringing nature, ambush marketing continues to exist due to several reasons, such as the short lifespan of events, absence of specific statutes to counter ambush marketing and the various strategies of corporations in defending themselves. In the wake of effective rights-protection mechanisms becoming a prerequisite for hosting international events, the need has arisen to enact specific legislation on the subject.

Kavita Mundkur Nigam is an associate attorney at Krishna & Saurastri. She can be contacted at: kavita@krishnaandsaurastri.com

ICC Cricket World Cup, ambush marketing