The Risk for Brand Owners of Ambush Marketing During Major Sporting Events

Major sporting events, such as the Olympic Games and the FIFA World Cup garner significant public attention, and due to the development of communications technology, such as broadcasting and the Internet, it is possible to reach billions of consumers in increasingly distant locations.

The Olympic Games in Paris, and major regional soccer tournaments, such as the European Football (UEFA) Championships and the Copa América during the summer of 2024, will see the official sponsors of these events seeking to use traditional and digital marketing channels to increase their brand visibility and promote their products and services.

The importance of these major sporting events for brands highlights the need to discuss the prevention of unfair commercial practices, which can include ambush marketing, which threatens the protection of intellectual property (IP) rights of the official sponsors and the organizing entities.

Ambush marketing occurs when companies attempt to associate their products and services with a particular major event without being official sponsors.

As such, they look to take advantage, whether through the marketing and advertisement of their products and services in mass communication vehicles, such as radio, TV, e-commerce and social media, or by selling their products in the vicinity of the venues for these events.

Ambush marketing is generally divided into two categories—by association and by intrusion:

Ambush Marketing by Association

This involves advertising activities that lead consumers to believe that a brand owner is an official sponsor of the event. In this case, the advertising activities aim to achieve an economic or advertising advantage through an association, using visibly distinctive signs, mascots, or any other symbol owned by the event organizer without its authorization, inducing third parties to believe that the organization that owns the IP rights to the event has approved, authorized, or endorsed such brands, products, or services.

For example, before the Seoul Olympics in 1988, a credit card company ran campaigns that appeared to refer to the event though it was not an official sponsor. This included offering OLYMPIC medals to customers.

Ambush Marketing by Intrusion

This occurs when a non-sponsoring brand showcases its products or services at the location of the event, or through advertising or broadcasting in any space associated with the event. This can include the following:

• Distributing samples of products;
• Posting on social media with dedicated hashtags; or
• Hiring individuals to wear clothing bearing marks with the event’s logo in the hope of appearing in a live broadcast.

For example, during a match between the Netherlands and Denmark at the FIFA World Cup in 2010, a Dutch beer company sent a group of 36 women dressed in identical orange mini-dresses to the stadium. The public associated the beer brand with the mini-dresses through a large-scale advertising campaign (a mini-dress was provided free with the purchase of an eight-pack of beer). The stunt was caught on camera, generating massive publicity. FIFA ejected the women and threatened legal action, but the brand had already gained substantial media attention.

Since ambush marketing has become a serious concern, many host countries of major sporting events, like the Olympic Games and international soccer competitions, have implemented laws or regulations to protect the official sponsors and partners of the event. One example is Brazil, which implemented General Sports Law number 14,597 of June 14, 2023, retroactively to combat unlawful practices during the World Cup 2014 and the 2016 Olympic Games held in Rio de Janeiro. This legislation marked ambush marketing as a practice of unfair competition and a violation of civil and criminal conduct in Brazil.

The Olympic Games in 2024

France has implemented a robust framework of laws and regulations under the French Code of Sport to prevent ambush marketing and protect the rights of official sponsors and partners of the Olympic Games in 2024. These laws aim to ensure that only official sponsors have the right to use the symbols, logos, and other IP associated with the Olympic Games for promotional purposes.

The concept of parasitism is well-defined in French jurisprudence, and the courts have previously ruled against brands for creating confusion with event partners.

French law has created a specific protection, apart from the regular trademark registration system, that makes the French National Olympic Committee the rightful owner, in France, of the Olympic signs, such as the national emblems, but also the Olympic flag, motto and symbol, anthem, logo, mascot, slogan, and the posters of the Olympic Games, the year of the editions of the Olympic Games “CITY + year,” the terms OLYMPIC GAMES, OLYMPISM, OLYMPIAD, JO, OLYMPIC, OLYMPIAN, and OLYMPIENNE, except in common language for normal use, excluding any use of any of them for promotional or commercial purposes, or any risk of confusion in the minds of the public with the Olympic movement.

The French government has further strengthened IP protections for the Paris 2024 Olympics by, for example, enacting the Paris 2024 Olympic and Paralympic Games Bill, which authorizes AI-powered video surveillance to monitor and prevent in-person ambush marketing tactics.

The Olympic Host Contract between the International Olympic Committee (IOC) and the French government explicitly requires the French government to have sufficient protections in place against ambush marketing, which the IOC defines as:

All intentional and unintentional attempts to create a false or unauthorized commercial association [whether direct or indirect] with the Olympic Movement or the Olympic Games, in particular any third party’s use of creative means to generate a false association with the Olympic Games, to infringe upon the laws protecting the use of the Olympic image and/or to interfere with the legitimate marketing activities of Olympic sponsors/suppliers/licensees.

IOC Protection

The IOC employs a comprehensive IP strategy to uphold its rights, which includes trademarks such as OLYMPIC GAMES, PIERRE DE COUBERTIN, OLYMPIC, PARALYMPIC, PARIS 2024, LA 2028, and the Olympic symbol of the five rings, as well as various registered and unregistered designs and copyrights.

The extensive guidelines contained in the Olympic Charter control their use, stating: “All rights to the Olympic properties, as well as all rights to the use thereof, belong exclusively to the IOC, including but not limited to the use for any profit-making, commercial or advertising purposes. The IOC may license all or part of its rights on terms and conditions set forth by the IOC Executive Board.”

The IOC defines ambush marketing as “attempts to create a false or unauthorized commercial association with the Olympic Movement or the Olympic Games, infringing upon the laws protecting the use of Olympic imagery and interfering with the legitimate marketing activities of Olympic sponsors.

Since the Olympic Games in Los Angeles in 1984, the IOC has required all countries to implement strict laws to protect the commercial interests of the official sponsors by preventing ambush marketing practices.

Host cities are required to register all relevant trademarks, designs, and domain names, precluding unauthorized use. This strategy prevents bad-faith registrations and cybersquatting.

Sponsors of individual competitors in Paris should be aware of Rule 40 of the Olympic Charter, especially if they are not also official sponsors of the Olympics. Rule 40 limits the ability of athletes to allow their personal sponsors to market their association with the athlete during the “Games Period,” which runs from July 18 to August 13 in 2024.

Generic advertising which does not use any Games IP or allude to the Games or the athlete’s performance at the Games is allowed if it has previously been used in the market, and has run consistently in nature and frequency, that is, without uplift or escalation during the Games Period.

Official partners fall under four categories—Worldwide Partners, Premium Partners, Official Partners, and Official Supporters—and include brand names such as COCA-COLA, VISA, and TOYOTA. These companies make substantial payments to enjoy the privilege of using the Olympics’ IP and leveraging the tournament for marketing purposes.

The IOC’s TOP (The Olympic Partners) Program offers category-exclusive marketing rights to a select group of global partners, including notable brands like AIRBNB, ALIBABA, and ALLIANZ. These partners provide significant funding and services essential to the Games’ operations. Consequently, protecting these partnerships from ambush marketing is critical to ensuring the financial viability of the Olympics.

The summer of 2024 promises to be a thrilling season for sports fans. The Olympic and Paralympic Games in Paris, along with soccer’s UEFA European Championship and Copa América, will captivate billions of viewers, presenting unparalleled opportunities for brands to amplify their visibility through strategic marketing and advertising campaigns.

While these events offer brands considerable marketing opportunities, they also come with significant risks if they fall victim to ambush marketing tactics. By adhering to best practices and navigating the complex legal landscape, brands can effectively leverage these events to enhance their visibility without incurring legal or reputational damage. The key lies in strategic, compliant marketing that respects the IP and sponsorship rights of the event organizers.

Given the strict legal protections that underpin the Olympics, companies should only execute carefully designed advertising campaigns during the period of the Games without mentioning the name of the sporting event or the location of the Games or using any of its logos. In this way, sports-themed promotions will not imply a false association with the Games.

The competitive landscape between brands at these events necessitates a vigilant approach to avoid crossing the line into ambush marketing, which, while potentially lucrative, can lead to severe legal, practical, and reputational repercussions.

An offbeat, even humorous, approach could be possible.

For example, in the run-up to the soccer European Championships and the Olympic Games in 2016, the Intersnack group’s VICO crisps brand launched a promotional campaign based on the slogan VICO, PARTNER OF HOME FANS.

The Irish online betting company Paddy Power sponsored a simple egg and spoon race in the Burgundy village of London, France, during the Olympic Games in London in 2012, with the campaign “Official Sponsor of the largest athletics event in London this year! There you go, we said it. (Ahem, London France that is).” At the time, the Olympic Games Organizing Committee failed to stop the promotional poster campaign.

Here are some best practices to ensure legally compliant marketing during the Paris 2024 Olympic Games:

• Consistency in Campaigns: Run campaigns consistently across jurisdictions and formats during the Games Period in the same way they were run prior to the specified cut-off date.
• Factual References: Complying with Rule 40 of the Olympic Charter, limit references to the performance of athletes or teams at the Olympics to factual statements within the context of their broader achievements.
• Jurisdictional Awareness: Remember the jurisdictions where advertising will be available, particularly those targeting France during the Olympic Games Period.
• Contract Compliance: In accordance with Rule 40 of the Olympic Charter, review athlete contracts to ensure compliance with restrictions on the use of their image during the Olympic Games.
• Alternative Themes: Consider using alternative themes that indirectly acknowledge the Olympics, such as general references to sports or the city of Paris, while avoiding specific Olympic imagery.
• IP Checks: Conduct thorough checks, including trademark searches, to avoid infringing on registered Olympic and Paralympic IP.
• Social Media Compliance: Educate marketing and social media teams on the importance of complying with ambush marketing regulations.
• Consumer Perception: Ensure marketing campaigns do not mislead consumers into assuming an official connection with the event.
• Avoidance of Olympic IP Signs: Refrain from using general or specific Olympic and Paralympic IP trademarks and signs, such as the OLYMPIC rings, the PARALYMPIC symbol, or the PARIS 2024 logos.
• Avoidance of Team or Athlete IP: Do not use any team or athlete’s IP, including images, without explicit permission.
• No Event Imagery: Avoid using images or footage of previous or current Olympic/Paralympic Games.
• No Ticket Rewards: Do not include OLYMPIC/PARALYMPIC GAMES tickets as marketing rewards without consent.
• Avoidance of Words Evoking the Games: In advertising, avoid words that evoke the spirit of the Games, such as GAMES, 2024, MEDALS, PARIS GAMES, and OLYMPICS because they may be protected as IOC’s trademarks and use in relation to the Games may be qualified as an unfair commercial practice.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

© 2024 International Trademark Association