Ambush Marketing: Striking the Right Balance

“Pulling on your country’s shirt is the greatest honor a footballer can have. It’s what I always dreamed of as a kid and I get a buzz every time,” Manchester United and England Captain Wayne Rooney once told Soccerbible.

Players such as Rooney will don their country’s shirt to compete in the world’s ultimate football tournament—the World Cup, which will be hosted by Russia in 2018.

In February this year, soccer website ESPN FC reported that Russia had increased its 2018 World Cup budget by US $325 million. The total spend rose to 638.8 billion rubles (US $10.8 billion). The increase reportedly came from federal budget funds and represents 55 percent of the total spend.

However, like the hosts of other international sporting events, such as the 2012 London Olympic Games and 2014 Sochi Winter Olympic Games, Russia will have to be prepared for dealing with cases of ambush marketing during the tournament.

The Road to Russia

According to Igor Motsnyi, Partner and trademark attorney at Motsnyi Legal Services, there has not yet been any ambush marketing surrounding the World Cup in Russia.

But “there have been previous cases of ambush marketing in Russia, in respect of the 2014 Winter Olympic Games in Sochi.”

According to reports in October 2013, Zippo published on its Facebook page a photograph of a man in a black coat using a ZIPPO lighter to relight the flame of an Olympic Games torch, which was held by Shavarsh Karapetyan, a former Soviet Armenian finswimmer. Karapetyan was wearing a Sochi 2014 Winter Olympics jacket in the image.

Zippo then allegedly published the image across the internet with the hashtag #ZippoSavesOlympics.

Officials from the Sochi Games warned Zippo that it may be breaching rules on companies linking themselves to the Olympics Games unless they were official sponsors.

Zippo subsequently removed the image from its Facebook page.

Another high-profile case, Mr. Motsnyi explains, involved a “famous Russian wrestler who advertised a mobile phone operator just before the 2012 London Olympic Games.”

The mobile phone operator, MegaFon, the general partner of the Sochi Olympics and sponsor of the London Olympic Games, accused its rival MTS of parasitic marketing featuring wrestler Hassan Baroev, according to 15th Region, a Russia-based news site.

“The problem was that the sponsor of the Sochi Olympic Games was the competitor of that mobile phone operator, so the competitor was not very happy because there was a clear association between the Olympic Games and the other mobile company,” he says.

The Threat of Ambush

Despite the lack of ambush marketing so far, the organizers and sponsors of the 2018 World Cup must still be aware of the threat of ambush marketing potentially before and during the event.

Natalia Gulyaeva (Hogan Lovells, Moscow) adds that World Cup organizer FIFA is the owner of the Russian national trademarks VOLGOGRAD 2018 (in Latin and Cyrillic), a reference to one of the tournament’s host cities. Volgograd has a 45,000 seater-stadium and is situated at the foot of the city’s Motherland Calling monument in Mamayev Kurgan. The statue commemorates the Battle of Stalingrad, which took place during World War Two.

“In September-November 2016, the Volgograd antimonopoly authority heard a case on infringement of advertising law,” says Ms. Gulyaeva.

According to news website Seven Day News, the antimonopoly authority handed down the first decision on the use of illegal advertising of the symbols of the 2018 FIFA World Cup.

The antimonopoly authority ruled that the simultaneous use of the Volgograd city’s coat of arms and the words “2018” and “2018 Volgograd”, along with the VOLMA trademark, “creates a false impression” about the involvement of manufacturers of products under the VOLMA construction materials brand to the FIFA World Cup held in Volgograd, the ruling reportedly said.

Ms. Gulyaeva says: “The main point was that in the advertisement, unauthorized use of the FIFA trademark took place, and as a result, the actions by the company were recognized as an act of unfair competition.”

INTA’s Position

In 2010, INTA’s Board passed a resolution, sponsored by the Emerging Issues Committee, on ambush marketing.

According to Association, ambush marketing legislation often impedes trademark owners’ rights by “failing to appropriately balance the interests of official sponsors and event organizers with free commercial speech, fair use, and the legitimate commercial activities of others.”

In a bid to resolve this, the Association recommended a set of measures aimed at achieving a reasonable balance between the interests of organizers, sponsors, local businesses and property owners, the local community, and trademark owners.

“A balanced approach to ambush marketing legislation provides reasonable protection to all affected parties without allowing one group to hold a special status to the detriment of other groups,” said the resolution.

To develop a formal position for the Association and a set of guidelines, the Committee had conducted a survey of a representative sample of INTA’s members.

Social Media and Ambush Marketing

Social media has become an important part of how we view and interact with each other and sport.

The 2012 London Olympic Games were hailed as the “first social media Olympics.”

Athletes such as heptathlete Dame Jessica Ennis-Hill, long jumper Greg Rutherford and swimmer Michael Phelps are now prominent figures on social media.

A case of ambush marketing took place during the 2016 Rio Olympic Games.

According to The Guardian, BEATS BY DR DRE headphones were successfully distributed to U.K. athletes including tennis player Laura Robson and diver Tom Daley.

The music company successfully “skirted” the strict rules on ambush marketing by sending British team members “special versions” of the BEATS range by branding them in union flag colors.

The athletes tweeted that they had received them. Footballer Jack Butland said: “Love my GB Beats by Dre.”

During important sporting events, companies may use social media to ambush market—but will this be the case in the 2018 Russia World Cup?

“Social media are more popular now and will be even more popular next year, so I certainly expect we will have some cases of ambush marketing on social media. You will have to wait and see,” says Mr. Motsnyi.

Ms. Gulyaeva adds that “social media sites react fairly quickly if rights owners approach them—they can block or delete the content, depending on the demands filed by the rights holder.”

On social media it is much easier to place advertisements or content which would potentially be ambush marketing, she notes, and this content would be available for “quite some time before it’s blocked, if it’s not caught immediately.”

Special Legislation

Russia has legislation on trademark protection that has been enforced for many years. Part IV of the Civil Code of Russia, chapter 76, paragraph 2 is specifically designed for trademark protection.

A law has been created specifically for the 2018 World Cup: the Law on Organization and Conduct of the Football Word Cup 2018, says Mr. Motsnyi.

“That law is designed to deal with the World Cup. What it does, among other things, is set up some standards of advertising during the event; it also sets up provisions and rules relating to IP rights.

“This law is an addition to all other pieces of legislation,” he adds.

There are specific requirements for advertising before, during and after the World Cup.

Ms. Gulyaeva says that trademark holders “should not be shy” and should be “very encouraged” to take action.

“It is important for Russia as a host of the World Cup that every company who feels that its IP rights are infringed may rely on the support of state authorities,” she adds.

The FIFA Confederations Cup, which is taking place this year, will be “the first test of how the enforcement works—soon we will have first results,” Ms. Gulyaeva adds.

The tournament, which is staged every four years and is considered a rehearsal for the FIFA World Cup, will begin on Saturday, June 17 and end on Saturday, July 2.

Clear Definitions

In its Board Resolution, INTA recommended a set of principles and guidelines that countries planning to adopt ambush marketing legislation should follow.

Countries should consult with the potentially affected parties before the adoption of the legislation, according to INTA, and the effect of the legislation on trademark applications should be taken into account.

Restricted ambush marketing activities should be clearly defined and limited in scope so that only commercial activities that create or are likely to create a false implication of sponsorship among the public are prohibited.

INTA also recommended that the special protections granted to organizers and sponsors be time-limited and that remedies in the legislation should minimize the risk of sponsors using “overreaching rights of action to the detriment of bona fide trademark owners.”

So while pulling on your country’s shirt may be the greatest honor a footballer can have, a different type of honor extends not only to the World Cup sponsors, but also to legislators—to ensure they strike the right balance when seeking to restrict advertising opportunities.