Protecting the World Cup: Ambush Marketing and I.P. Violation
Posted by Adrian Sertl on Thu, May 20, 2010
Every four years the eyes of the world are on a 110 metre by 75 metre patch of grass as the best footballing nations of the world take to the pitch in the hope of lifting the FIFA World Cup Trophy. There were nearly 30 million (non unique) viewers of the 2006 World Cup held in Germany and it would be a good bet that there
will be somewhere around the same number watching this time around as the event makes its hosting debut on the African continent. With those kinds of TV numbers being thrown around FIFA's official partners and supporters who have spent large sums of money to acquire the advertising rights to this event are going to need assurances that no one, knowingly or not, encroaches on these exclusive Intellectual Property rights.
Now having been recently involved in monitoring I.P. rights for a different worldwide sporting event and being a lifelong supporter of the game of football, I was instantly intrigued when I saw the January/February issue of the World Intellectual Property Review had an article outlining the steps that FIFA was taking in order to keep their partners' I.P. rights exclusive; the focus here was mainly on combating "ambush marketing". The crux of the article is that in addition to having to build FIFA approved stadiums to house the matches, ensuring the necessary security for the participants, officials, and spectators, and constructing the infrastructure needed to make everything run smoothly FIFA mandated that the South African government would need to have preventative and punitive measures in place in case any of the official partners' I.P. rights were to be violated.
According to the article, the World Cup falls under the category of a "protected event" as laid out in Notice 683 of 2006 of the Government Gazette). This means that all of the provisions in Section 15 A of the Merchandise Marks Act of 1941 can and will be applied to any case of I.P. violation throughout the full duration of the tournament; from the 11th of June 2010 to the 11th of July 2010.
Since I've dealt somewhat with Intellectual Property rights in this context I can say with a fair amount of certainty that there is a lot of grey area when it comes to things like fair usage. Some people will genuinely attempt to profit from ambush marketing whereas others will unintentionally infringe. While there are what FIFA calls opportunities for local businesses and traders, they must make sure that they are not in violation of any of the paid sponsors' I.P. rights. In FIFA's own words:
The rights protection programme is aimed primarily at tackling organized ambush marketers, counterfeiters, and unauthorized traders, all of whom seek to profit from an event to which they have not contributed.
As of the writing of the article there have only been a handful of cases of I.P. violation that FIFA has needed to deal with, most of which were settled out of court. One such case of ambush marketing that occurred after the article had gone to print involved South African airline kulula, who ran an ad campaign stating that they were the "Unofficial National Carrier of the You-Know-What". That in and of itself may have been tolerated but when the airline used South African flags in conjunction with football imagery, FIFA stepped in and demanded the cease and desist of the campaign.
We can probably expect the cases of ambush marketing to increase as the event draws nearer; I am reminded of the story of the supporters of the Netherlands national football team in 2006 that were forced by game-day officials to watch a match in their underwear because they had worn orange lederhosen that were sponsored by a Dutch brewer Bavaria, complete with corporate logos and all. Since Bavaria was not an official sponsor of the World Cup, the officials confiscated the pants and the supporters were out of luck. You'll all be happy to know that Holland won the match so at least the supporters had something to cheer about, even if it was a little breezy in the stadium that day.