Ambush marketing has emerged as a strategic approach adopted by several corporations. It is a marketing strategy that has minimal investment yet is capable of yielding substantial returns. This however does not constitute an ethical business practice. Ambush marketing infringes upon the exclusive rights of official sponsors and constitutes a misleading act directed at the public. This post examines the nature of ambush marketing, its strategic appeal to corporations, and the ethical and legal implications it entails.
Ambush marketing is also known as Parasitic marketing. Ambush marketing was coined in the 1980’s by marketing strategist Jerry Welsh while he worked with the American Express. The Merriam Webster Dictionary defines the term as “Marketing in which a company attempts to advertise and promote its products by associating themselves with a public event without paying the fees that an exclusive sponsor is required to pay’.
The earliest known instance of Ambush marketing was during the Summer Olympics (1984) hosted by Los Angeles. Fuji had acquired the official Olympics sponsorship by investing heavily. But, Kodak, acquired the television time for advertisements when the games were televised. The public mistook Kodak to be the Official sponsor of the Summer Olympics.
There have been several instances of Ambush Marketing around the world since then. During the 1994 Winter Olympics, Visa had paid $40 million as sponsorship payment and had acquired exclusive rights to provide credit card services at the game’s venues. American Express aired a television commercial promoting the availability of its services with a voice-over saying: “So, if you’re travelling to Norway, you’ll need a passport but you don’t need a Visa.”[i] The International Olympics Committee and Visa accused American Express of engaging in Ambush Marketing.
In, National Hockey League v. Pepsi, the first known case that dealt with Ambush Marketing, NHL sued Pepsi Cola for Passing off, where the original rights of being the official drink was given to Coca Cola for an amount of US $ 2.6 million. Coca Cola did not have advertising rights and this was held by Molson Breweries of Canada, Ltd, which had tied up with Pepsi giving it the right to be the exclusive advertiser of soft drinks during broadcast of all the ‘Hockey Night in Canada’ games. Pepsi advertised a show of a celebrity with Pepsi as a drink thereby sending a message that Pepsi was the official drink. At the trial court NHL argued that Pepsi was liable for passing off by giving an impression to the Public that NHL had approved or associated with the contest. Pepsi argued that it had indulged in aggressive advertising and promotional campaigns and not passing off. The Court examined the extent of advertising done by Pepsi and whether NHL had approved or authorised. The Court held that there was “nothing that would constitute direct interference by the defendant (Pepsi) with the due performance of NHL’s contractual relationship with Coke. The Court stated that “although the NHL-Coke agreement obligates NHL, so far as it’s able to protect the rights of Coke from ‘Ambush Marketing’ such obligation cannot impose a duty upon a third party to refrain from advertising in a manner which “although aggressive, is not by the law of Canada, unlawful”.
Another example of Ambush Marketing is the Coca Cola/ Pepsi debacle during the Cricket World Cup of 1996.[ii] Coca Cola was the official sponsor of the event but Pepsi ran a campaign titled “Nothing official about it” very vigorously and stole the limelight. In 2010, during the World Football Championship which was sponsored by Adidas, Nike put up an interactive advert in Johannesburg. Nike was not the official sponsor but it created a buzz.[iii] In 2014, during the Football World Cup, where Coca Cola was the official sponsor of the event, Pepsi indulged in ambush marketing by signing 19 renowned football players like Lionel Messi, Sergio Aguero for the “Live for Now” campaign.[iv] This gave an impression that Pepsi was officially associated with it.
Ambush Marketing comprises of three main categories: –
- Direct Ambush Marketing.
- Associative Ambush Marketing.
- Incidental Ambush Marketing
Direct Ambush Marketing
Trademarks associated with the official sponsor of a major sporting event is intentionally used to create the impression in the public that the ambushing corporation is the official sponsor.
Direct ambushing is further sub classified to include: –
Predatory ambushing is the direct ambushing against the official sponsor of an event. An example is the UEFA European Championships in 2008. The official sponsor of the event was Carlsberg. Heineken created drum hats with Heineken logo and name for the Dutch fans travelling to Switzerland, a likely ambush marketing strategy.
Coat tail ambushing is when an organisation attaches itself to a property using legitimate link without being an official sponsor. In Beijing Summer Olympics, Nike engaged in coat tail ambushing by releasing the ad for the injured hurdles player Liu Xiang who was a Nike endorsed athlete.[v]
Property infringement ambushing involves the intentional use of protected intellectual property such as logos, names, words and symbols to attach itself to the event.
Associative Ambush Marketing
When a company intentionally shows itself to be the having links to the sports event using language to its benefit without specifically saying it’s the official sponsor. Some strategies are
Sponsor self-ambushing: – wherein one official sponsor ambushes the other official sponsors exceeding the sponsorship rights.
Distractive ambushing: – creating distraction near the place of event by promoting its own products near the venue.
Value Ambushing; – Making a direct reference to the event implying a link with the event in the consumers’ minds.
Insurgent ambushing: – to make aggressive and surprise promotion during an event to attract attention of the public and to push off the official sponsor from the picture.
Pre-emptive ambushing: – When official sponsor uses aggressive marketing as a strategy to prevent others from employing ambush marketing on it.
Parallel property ambushing – To run another event concurrently with the main sporting event thereby diverting the attention on the official sponsor.
Incidental Ambush Marketing
As the name suggests, the ambushing happens incidentally. Unintentional and Saturation ambushing are the two kinds of Incidental Ambushing. Unintentional ambushing is when the consumers mistakenly place a particular brand as associated with an event either due to the brand’s previous association or expectation that the brand may associate with the event. Saturation ambushing is the aggressive marketing at all stages of the event by a corporate who is not the official sponsor.
Though many countries like, England, China, Australia, New Zealand, Brazil, Canada and South Africa through specific enactments have tried to curb Ambush Marketing, there is no specific legislation against Ambush Marketing in India. Section 29 of the Trademarks Act, 1999 provides protection in case of infringement of a registered trademark in the form of names or logo of an official sponsor of an event. The merchandise, footwear and apparel designs are protected under the Design’s Act, 2000. The Copyrights Act, 1957 protects registered original literary, dramatic, musical and artistic works. The broadcasters and performers rights are also protected under the Copyrights Act, 1957.
The Delhi High court dealt with a case of ambush marketing in India in ICC Development (International) Ltd. (ICCDL) v. Arvee Enterprises and Another,[vi] The Plaintiff -ICC Development( International) ltd had created a distinct logo and mascot for the ICC 2003 World Cup and a trademark application for the registration of the trademark “ICC World Cup” Logo & Mascot” was also filed by the Plaintiff with the Registry. Philips in its advertising campaigns used “Philips: Diwali Manao World Cup Jao” and “Buy a Philips Audio System win a ticket to the World Cup” inserting a pictorial representation of a ticket with an imaginative seat and gate number saying “Cricket World Cup 2003” during its advertising campaign. As per the Plaintiff, this amounted to ‘passing off, ‘unfair competition’, and ‘ambush marketing’. The Delhi High Court held that the term “World Cup” was a generic term and the use of those words by the defendants did not constitute the misuse of the logo of International Cricket Council. The claim of ambush marketing was also not recognised by the Delhi High Court.
Ambush Marketing is not explicitly illegal in most jurisdictions including India. It operates in a grey area where companies may face claims of passing off, trademark infringement, or unfair- competition. To succeed in a claim of passing off against the ambushing organisation, the event organiser should prove its established reputation and good will, that the ambushing party through its unethical marketing influenced the public in drawing a connection between the ambushing corporate and the event organiser and that it suffered/likely to suffer damages. Most often, the tactic of Ambush Marketing is just seen as aggressive marketing and the claim of passing off fails.
