For the latest article in his marketing series, Grid Law founder David Walker returns to explain the legalities of ambush marketing and how small business owners can ensure they remain on the right side of the law.
As business owners, we’re always on the lookout for publicity to attract new customers. We could spend a fortune on this, so when an opportunity arises to catch their attention for free, we jump on it.
This is what happens when the whole country gets caught up with the hype and enthusiasm surrounding, for example, a big sporting event. We run special promotions to cash in on the excitement, and all of our marketing has a little twist showing our support for the local heroes.
The problem is, if you’re not an official sponsor of the event, doing so could land you in serious financial trouble.
This practice is known as “ambush marketing” and it’s often thought of as the battle ground between big brands over big events such as the Olympics or football World Cups.
However, ambush marketing is much wider than that. It covers any attempt to try and associate yourself with an event when you’re not authorised to do so.
Ambush marketing – The legal position
So, how far can you go, without getting into trouble?
The legal position relating to ambush marketing is quite clear, and I’ll explain this below. However, the level of enforcement of this legal position varies quite considerable and that’s what creates some uncertainty around what is or isn’t acceptable.
Some people will jump on the bandwagon of some events and get away with it, while someone else tries it once and gets caught.
To explain why, let’s look at the two ends of the scale, before we tackle the grey area in the middle.
Probably the most restricted and highly policed event we have ever come across in the UK is the London 2012 Olympic Games.
Special legislation was enacted to prevent any unauthorised associations with it. Not only were you prevented from using the traditional Olympic symbols and specific event logos, there were even certain combinations of words you could not use.
If you used them for your business for any reason, you were told to stop immediately and failure to do so would have resulted in legal action against you.
At the other end of the scale are seasonal events and celebrations.
As you would expect, you are pretty much free to do whatever you want around Christmas, Easter, Halloween and Valentine’s Day etc. provided you comply with general principles of advertising and marketing. (For more on this, see my previous article – Promoting your business: The line between impact and illegality).
The main difference between the two ends of the scale is the amount and value of the intellectual property associated with them.
Almost every aspect of the Olympics is protected by intellectual property rights which are owned by the International Olympic Committee. These rights are worth billions of pounds to the IOC and so they will do everything they can to protect them.
On the other hand, there is no intellectual property in seasonal events, nobody trying to protect them and so everyone is free to celebrate how they choose.
The middle ground is where an event is protected by intellectual property rights, but these rights are not enforced or not enforced consistently, perhaps due to a lack of resources.
Opportunities for small businesses
So, as a business owner, what can you do to join in the celebrations?
The legal position is, as I said before, quite clear. If someone owns any intellectual property rights in an event, you cannot use them without their permission. Just because they haven’t enforced their rights in the past, it doesn’t mean they won’t enforce them in the future.
This means that you should steer clear of using the name and logo of the event. They’re likely to be protected by trademarks and even if they are not, they will have a strong reputation and will therefore be protected by the laws of passing off.
Also, you mustn’t try to give the impression that you are an official sponsor of the event, a supplier to it or in any way associated with it if you are not. This would be misleading and misleading advertising can be a criminal offence.
Indirect associations should also be avoided. For example, the café of a gym I belonged to would often offer special snacks and smoothies named after particular events or the athletes taking part in them. Whilst I’m not aware they were ever caught, they were infringing several trademarks and skating on thin ice.
Another example of indirect association with an event is when a client of mine ran a competition to give away tickets to a major event (they didn’t ask me about this first!). They did this in all innocence and paid full price for the tickets.
What they didn’t realise was this this was a breach of the terms and conditions under which they bought the tickets.
They then named the event whilst promoting the competition (committing trade mark infringement) and used footage and images of the previous year’s event in their advertising (a breach of copyright).
They came to me when they received a cease and desist letter from the event organiser’s lawyers demanding they close the competition and also that they pay the organiser a huge amount of compensation.
In the end, we reached a settlement, but we still had to deal with the disappointment of the people who had entered the competition and this was a lost opportunity for some really positive publicity for the company.
This means you have to be creative. Just because someone owns the rights to an event, they don’t own the sport so you could use generic terms relating to say tennis, football or athletics.
Likewise, they won’t own a country so you could use something stereotypical to the location where the event is taking place and try to make some sort of connection in people’s minds.
Whatever you choose to do, you need to be respectful of the fact that these big events are someone’s property. The bigger they are, the more valuable their rights will be and so the more likely they will enforce them.
As a lawyer, I’ve seen too many of these opportunities backfire on businesses and I don’t want that to happen to you. So please, if you have any questions about where to draw the line when promoting your business, email me at firstname.lastname@example.org and I’ll be happy to answer them for you.
Catch up on the rest of David Walker’s marketing series:
- Promoting your business: The line between impact and illegality
- Direct electronic marketing: Obtaining consent to stay on the right side of the law
- How to run a successful (and legal) promotional prize draw
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