Drishtikon: Intellectual Property in Sports — Ambush Marketing
The article discusses the concept of ‘Ambush Marketing’ with reference to Indian Laws.
Ambush marketing, also called ‘guerrilla’ or ‘parasitic’ marketing, is a case of free-riding at the official sponsors’ expense (pseudo-sponsorship) by the un-associated competing brands to indirectly associate with an event to capitalise on the financial benefits without buying the sponsorship rights by creating a wrong impression in the minds of the intended consumers. Sandler and Shani (1989) define ambush marketing as “a planned effort by an organisation to associate itself indirectly with an event to gain at least some of the recognition and benefits associated with being an official sponsor”.
Ambush Marketing broadly can be divided into three parts:[1]
a) Direct ambush marketing (intentional use of symbols and trademarks) — Predatory ambushing, Coattail ambushing, and Property infringement ambushing.
b) Associative ambush marketing (intentional use of such terms or imagery which portrays association with the event) — Sponsor self- ambushing, Distractive Ambushing, Value Ambushing, Insurgent Ambushing, Pre-emptive Ambushing, and Parallel property ambushing,
c) Incidental ambush marketing (when the market communications of a company lead to such incidental ambushing of the official sponsors) — Unintentional ambushing and Saturation ambushing (strategic increase in the marketing communication).
In the absence of any specific legislation related to Ambush Marketing, the Trade Marks Act, 1999; the Copyright Act, 1957, the Emblems and Names Act, 1950, and the common law principle of ‘passing off’ comes into action.
In regard to “ambush marketing” the Delhi High Court in case of ICC Development vs. Ever Green Service Station,[2] recognized a limited role of copyright law in granting an injunction preventing the defendants from using the logo of “ICC World Cup 2003” consisting of black & white strips and the mascot “dazzler” holding these to be “artistic work” protected under section 2(c) of the Copyright Act, 1957.
In the case of ICC Development vs. Arvee Enterprises and Anr,[3] it was said that for a plaintiff to find success in his claim, he must prove that there was a “likelihood of confusion” in the public mind that the defendants were sponsors or license of the world cup. The defense of “nominative fort use” shall also be considered, the registrant of a trademark is not granted the right to limit the bonafide use by an unlicensed third party of his trademark to describe the character or quality of the trademarks registrant’s goods or services, so where a defendant uses a trademark to describe the plaintiffs' product rather than its own, a fair use defense is available provided that the product or service in question is not identifiable without using the trademark, that only so much of the marks are used as is reasonably necessary to identify the product or service and the defendant has not done anything that would suggest a sponsorship. The term “ambush marketing” is not part of the legal terminology and the practice does not in its own right constitutes unfair competition, does not seek to mislead the public, but on the contrary, is an instrument that uses the opportunity presented by an event to further its own commercial goals.[4]
The court observed that the phrase “ambush marketing” is used by marketing executives only and is different from passing off. In a passing-off action, there is an element of overt or covert deceit, whereas ambush marketing is opportunistic commercial exploitation of the event. The marketer does not seek to suggest any connection with an event but gives his own brand or other insignia a larger exposure to the people attached to the event, without any authorization of the event organizer. In such cases there is no deception, therefore the Defendants’ conduct cannot be categorized as wrongful or against the public interest. The court held that commercial advertising is commercial free speech and protected under Article 19 (1) (a) of the Indian Constitution. An advertisement campaign without using the logo or mascot of Plaintiff cannot be held to be unlawful.
Delhi High Court refused to accept ambush marketing as a plea for infringement of intellectual property when the International Cricket Council brought a suit against Britannia during the Cricket World Cup.[5]
Even a French court held that “sponsorship cannot deprive another economic player of basing its publicity on a sport provided it does not use the symbols or logos of the federation that organizes the event, nor the image. A sports event belongs to everyone because it constitutes part of current affairs and only its direct or televised showing can be the subject of specific rights acknowledged by article L.333–1 of the Code des Sports [Law on Sports]”.[6]
In the case of Arsenal Football Club plc vs. Mathew Reed,[7] the defendant was held liable for the trademark infringement for selling club merchandise (with official club logo) unofficially without a license from the club. In the Canadian case of National Hockey League (NHL) et al vs. Pepsi Cola Ltd.,[8] the Court found that although Pepsi’s actions did clearly constitute ambush marketing there was nothing in the law that could be done to protect either Coke or the NHL in its endeavors to protect Coke from its main competitor. In Master Card International Incorporated vs. Sprint Communications Co & ISL Football AG,[9] ambush marketing was the subject of a court injunction on the ground that consumers would, on seeing the Sprint card bearing a World Cup logo, mistakenly assume that Sprint had rights in a category that, in fact, belonged exclusively to Master Card.
[1] Prashant R. Sharma, Ambush Marketing- The Concept, RESEARCH HUB — International Multidisciplinary Research Journal, Volume-2, Issue-4, April-2015.
[2] (2003) 26 PTC 228.
[3] 2003 (26) PTC 245.
[4] ICC Development (Int’l Ltd.) vs. Arvee Enterprises & Philips, 2003 (26) PTC 245 (Del).
[5] Sudipta Bhattacharjee, Ambush Marketing−The Problem and the Projected Solutions vis-a-vis Intellectual Property Law−A Global Perspective, Journal of Intellectual Property Rights, Vol 8, September 2003, pp 375–388. Available at: <http://docs.manupatra.in/newsline/articles/Upload/6AAFBC39-5A72-4AE1-A3CE-ABE95CB25A6C.pdf>.
[6] TGI Paris, 3e ch., 1ère sect., 30 mars 2010, RG n° 08/07671, Fédération française de rugby c/ Fiat France, Léo Burnett et autres, Cah. dr. sport n° 20, 2010, 141, note J.-M. Marmayou.
[7] (2001) RPC 46 (HC).
[8] (1992) 92 DLR (4th) 349 (BC Sup Ct).
[9] 30 USPQ 2d 1963 (SDNY 1994); 23 F3d 397 (2d Cir. 1994).
Abhishek Kumar, B.A., LL.B., National Law University, Delhi [2015–2020]
The author can be reached at: abhishek.kumar15@nludelhi.ac.in
