Ready, set, attack!

Come August next year, amid the hustle and bustle of Rio’s world famous Maracanã Stadium and the Olympic Park could lie the threat of would-be ambush marketers, waiting for the chance to strike and expose their brand to a global audience of potentially billions. WIPR investigates what Brazil can do to stop them.

The countdown to the next Summer Olympic Games has begun, with less than a year to go until the curtain rises.

Next August, the Olympic torch will be lit over Rio de Janeiro, signalling the start of the 2016 games.

Four years on from the 2012 games in London, the eyes of the world will be on Brazil as one of sport’s greatest showpieces returns for a 16-day spectacle, from August 5 to 21.

While sports fans the world over will watch on in excitement, intellectual property lawyers and brand owners will also have a keen eye on developments.

Events such as the Olympics are a key hunting ground for ambush marketers, which deploy one of the most difficult-to-tackle forms of IP infringement.

Ambush marketing occurs when a brand or company attempts to associate its products, usually very publicly, with an event that it does not officially sponsor.

Brazil is no stranger to the dangers, having closed the curtain on the 2014 FIFA World Cup a little over a year ago. Brazilian authorities and companies know what to look out for and they are on high alert.

Paulo Parente, managing partner at Di Blasi, Parente & Associados in Rio, says that hosting the World Cup has helped Brazilian companies and people understand what can and cannot be done.

“The population knows a bit more about ambush marketing because of the World Cup and all the publicity that surrounded it. They know about what can and cannot be displayed or said.

“Before the World Cup there was no knowledge but now that people have experience they know what to expect.”

Parente says the World Cup itself went by without too many “serious instances” of ambush marketing, which gives hope for the Olympics.

But Patrícia Lusoli, senior partner at Guerra IP in Rio, says they are different and that although it is a “bigger global event”, the Olympics will not be as difficult to police due to its taking place in just one city.

“It will be easier to control ambush marketing at the Olympics because it all takes place in a limited area. During the World Cup you would need to police every place that hosted a game and take all the necessary steps to avoid ambush marketing in those areas.

“We do not have specific Brazilian law for dealing with ambush marketing but any new law must be a combination of the laws we already have."

“Rather than passing through lots of cities, there is just one city that is totally involved in the event. It’s a project of the city and as a result it is very interested in protecting the games.”

Lusoli points to one example from the World Cup when a truck displaying a brand name on the side was left in a petrol station close to one of the venues. The truck was covered before any news channels and television cameras spotted it and before the brand could be revealed.

“Normally these things can be avoided or stopped before there is a problem,” Parente says.

Preventing an ambush

Events surrounding ambush marketing at the Olympics, as Lusoli explains, will be managed by Rio’s Public Security Authority in conjunction with the International Olympic Committee (IOC).

Local organisations in Brazil will also work with the IOC to ensure infringements are kept to a minimum.

This does not mean that the federal government will have no role to play, Lusoli says, adding that customs authorities will also be on the lookout as they search for counterfeit imports.

“Any counterfeits trying to get in can be tackled by authorities. I’m not aware of any examples of counterfeits entering the country as yet but as we get closer I think it’s very likely that more and more items will be apprehended.”

The Olympic mascots and replica toy torches, both of which are protected signs, are likely to be among the most commonly counterfeited items, Lusoli says.

"There will doubtless be some nervous partner sponsors and members of the IOC as the clock ticks down towards the opening ceremony."

“A lot of these will be shipped from places such as China but there will also be items produced within Brazil that will have to be monitored,” she says.

The concept of ambush marketing drew worldwide attention when 36 Dutch women were caught on television cameras during the 2010 World Cup allegedly promoting the beer brand Bavaria, which was not an official FIFA sponsor.

Despite this, however, there is no specific anti-ambush marketing legislation in Brazil. Various guides, including the IOC’s official guidelines, Brazil’s Olympic Act (Law No. 12,035/09) and local enforcement, help to address the issue.

The act, passed in 2009, contains a number of rules, including specific provisions designed to protect the official symbols of the games.

Under the legislation, local authorities are responsible for monitoring, investigating and suppressing any unlawful acts that violate the rights.

Symbols are defined as distinctive signs used by the IOC. The act also protects variations of phrases including Olympic Games, Paralympic Games, and Rio 2016.

Despite this, Parente says, it will be difficult to completely stamp out ambush marketing, although its success can be reduced. You can’t stop people entering an arena and revealing a shirt, for example, but you can limit its impact.

“The authorities, if they detect the signs, can go directly to the people and ask them to leave. Even the official broadcast pictures will not focus on the people so it is possible to weaken the effect.”

Lusoli agrees, adding that it is “impossible to think of all the things that might happen” so it is hard to write a law to regulate for every eventuality.

“The rules have to be restrictive as otherwise there would be no effective ways to help sponsors,” she adds.

“We do not have specific Brazilian law for dealing with ambush marketing but any new law must be a combination of the laws we already have. We can use existing laws that deal with unfair competition and other forms of IP such as trademark infringement. There is also a strong consumer code in Brazil.”

Parente adds that the Olympic Games are “more restrictive” than the World Cup in what can and can’t be done, particularly when it comes to athletes.

“The Olympics has its own spirit which it strives to maintain in a way that’s very different from FIFA,” he adds.

One such restrictive provision, which has received greater coverage in recent months, is rule 40 of the IOC’s Olympic Charter.

Rule 40, which the IOC previously told our sister publication Trademarks & Brands Online is intended to combat ambush marketing, states: “Except as permitted by the IOC executive board, no competitor, coach, trainer or official who participates in the Olympic Games may allow his person, name, and picture or sports performance to be used for advertising during the Olympic Games.”

The rule, which the IOC is thought to be considering weakening, also restricts athletes and others from openly endorsing a brand that is not an official sponsor of the games shortly before and during the event in adverts, on social media and on personal blogs.

In addition to rule 40, the IOC adopted rule 50, which limits the sizes of manufacturers’ kit logos on athletes’ uniforms during the games.

“There is a problem with rule 40 which is that the IOC still acts as though the athletes are amateurs,” says Lusoli. “They are not adequately paid for what they do so they need their own sponsors.”

Olympic athletes are not paid appearance fees by the IOC and, as a result, many will need to find money through sponsorship.

Lusoli adds: “As far as the public is concerned the Olympics is the biggest event related to sport.

“Athletes must be professionals. This is the real world; I’m not saying it should be highly commercial but there should be a balance so that it is allowed for sponsors to sponsor athletes and associate themselves with the games.”

But despite the IOC’s apparent intention to alter rule 40, Parente tells us that there is so far “no news” on any decision.

Although some rules ensuring ambush marketing is kept to a minimum are in place and the authorities seem to be working together, there will doubtless be some nervous partner sponsors and members of the IOC as the clock ticks down towards the opening ceremony.

With lawyers in agreement that creativity and determination may outsmart regulations, we could see signs of successful infiltrations into the Olympic Park.

On what scale and how damaging it will be remains to be seen.