Ambush Marketing: Criminal Offence or Free Enterprise?

By Leone, Luisa | The International Sports Law Journal, July-October 2008 | Go to article overview

Ambush Marketing: Criminal Offence or Free Enterprise?

Leone, Luisa, The International Sports Law Journal

1. Introduction

Sport sponsorship is big business. Major sporting events attract large sponsorship fees and, as a result, a high risk of ambush marketing. The term 'ambush marketing' is an expression invented by its critics, hence the pejorative label for what in many cases is a form of marketing activity which simply refers or alludes to an event, without suggesting any form of official endorsement from or relationship with the event organisers. Other forms of marketing activity might indeed go further and aim to imply some form of association with the event (without making any clear misrepresentations or involving any infringement of another's intellectual property rights). But are all these forms of ambush marketing bad, as the term 'ambush marketing' seems to suggest? From the perspective of the event owners ambush marketing is wrong because it threatens their ability to retain top-paying sponsors. Similarly, for the official sponsors ambush marketing is undesirable because it increases the risk to their investment. For the ambusher, on the other hand, ambush marketing is an important commercial tool and a natural result of free competition.

Outside the sporting context, ambush marketing or simultaneous marketing campaigns are perfectly legitimate marketing activities, regarded as part of the cut and thrust of normal commerce. Take in-store promotions: manufacturers will pay large sums to secure some form of exclusivity in-store only to find this exclusivity undermined by a rival. No one would suggest that such 'ambushes' should be banned. Even within the sporting context, we find that ambush marketing has had some respectable supporters over the years. Major brand-owning companies such as PepsiCO, Nike, Fuji, Kodak, Wendy's and Qantas have all engaged in it. Many companies who opposed ambush marketing for events which they officially sponsored have engaged in the practice themselves at other events.

In recent years, however, there has been a trend towards outlawing ambush marketing. I would argue that this trend benefits neither sport nor the wider economy. Of course, no one would dispute that any marketing campaign which misleadingly suggests that the company behind the campaign is an official sponsor of an event should be unlawful, as should any marketing campaign which fails to respect another company's intellectual property rights, or is libelous or in breach of contract. But the opponents of ambush marketing are not content with such legal safeguards, which are already available to them. What the anti-ambush marketing lobby want is to ban all marketing which refers or alludes to the event in question, even if it does not suggest any form of official sponsorship or privileged relationship.

2. Some well-known examples of ambush marketing

Before considering the arguments for and against ambush marketing in greater depth, it is worth recalling a few well-known examples of ambush marketing.

* The American Express advertising campaign in the Visa-sponsored 1994 Lillehammer Winter Olympics, featured the slogan "If you are travelling to Lillehammer, you will need a passport, but you don't need a visa!"

* At a press conference before the men's 100 metres final at the 1996 Olympics Games, Linford Christie, the defending champion, arrived wearing the unforgettable electric blue contact lenses with a white Puma logo in the centre of each lens. Reebok was the official sponsor, but Linford Christie got more coverage that day than any of the medal winners.

It is not always easy to identify an ambush marketing activity. The European Sponsorship Association has highlighted the following as examples of activities where the position is not so clear:

* sponsoring media coverage of the event, without being an event sponsor;

* a team sponsor issuing branded messages of support for their team when the team is taking part in an event where the team sponsor is not the event sponsor;

* running generic football themed campaigns during the period of a major international football tournament (for example, the notable case of Lufthansa painting footballs on its aircraft during the 2006 World Cup). …

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