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5 June 2018

Ambush-Marketing: Associating major events in advertising

In principle, advertising in Switzerland may refer to major events, even if the promoted provider is neither an organizer nor a sponsor. However, advertisers must observe a number of rules when using such associations.

Ambush Marketing as a game strategy
"Ambush marketing" (with synonyms such as "parasite advertising" or "free rider marketing") refers to advertising activities using the media attention of another major event, e.g. a soccer world championship, whereby the advertiser has no legal connection to the event. Advertising with excessive references and image transfer by third parties can impair the exclusivity effect of sponsorship commitments and reduce income for organizers. Organizers, participants, sponsors and other contractual partners may therefore have a legitimate interest in excluding third parties from advertising in the context of the event. At the same time, the prominence of a major event must not lead to an excessive monopolization which disproportionately limits the marketing of third parties.

Rule of the Game no. 1: Use of third-party brands with license or for information purposes only
Brands in connection with an event may be protected by trademark law, e.g. in the form of words, images or combinations thereof (e.g. "FIFA", "WORLD CUP", event titles, images of mascots). However, the scope of protection for (word) trademarks with reference to an event location or time is controversial (e.g. "Russia 2018"). The trademark owner may prevent third parties from using identical or similar signs for similar goods and services, provided that there is a likelihood of confusion. Third parties may, however, use third-party trademarks to inform about their own offers (e.g. for appropriate comparisons, references to compatible systems, etc.). Often, however, third parties do not directly use the registered trademarks, but refer more subtly to the major event.

Firm name law can also provide some protection for organizers with the same company name and event. Domain registrations offer a de facto protection against colliding internet presences of third parties.

Game rule no. 2: Use of third-party works only with license
Copyright protected works are intellectual creations of literature or art, which have an individual character, e.g. the FIFA World Cup, mascots, film recordings, official theme songs of events, logos, but usually not titles). Public viewing (screening) requires a license, which in Switzerland is subject to the collective rights management.  

Game rule no. 3: No deception about sponsorship or other relationships
It is not deemed in itself illegal to refer to a major event in advertising and make use of the increased publicity of the event, under Swiss law. Swiss law against unfair competition deems unfair any incorrect, misleading or deceptive advertising statements. Marketing measures that can lead to confusion with the offer or the business operations of another are also deemed unfair. Statements by which the advertiser pretends that a business relationship (e.g. a sponsoring or supply relationship) exists with the event or organizer are considered unfair. Suggesting a sponsorship or another close connection to the winner of a game may be a violation of the personality rights. The distinction is not clear-cut. The overall impression that the advertising leaves on the audience is decisive.  

Game rule no. 4: Consideration of contractual requirements of the organizer
The organizers can draw up contractual rules for their sponsors and other partners (e.g. service and catering providers), including contractual penalties as security. Agreements for ticket purchases and terms of use for stadions oblige the visitors (e.g. by prohibition of foreign advertising materials in stadion). However, these regulations only have a direct effect on the contractual partners (e.g. visitors and suppliers).

By means of a public license, organizers can temporarily obtain special usage rights for public ground. This allows organizers to exclude third parties from advertising close to the stadium, for example. The same effect is achieved by buying up advertising space in the geographical and temporal environment of the event.

Suspension and loss of play in the event of a violation
If the advertising measure exceeds the permissible level of reference, the authorised organizers and sponsors may in particular obtain (judicial) prohibitions and claims for damages (e.g. loss of profit). Since major events are limited in time, organizers want to quickly eliminate inadmissible advertising. For this purpose, preliminary (without hearing the other party) or precautionary measures (with short-term possibility for comment) by a civil court may be granted. Criminal sanctions (e.g. fines, confiscation and destruction, but also custodial sentences) are also possible, depending on the offence. The self-regulatory authority of the communications industry, the Swiss Commission for Fairness, acts on complaints from third parties. The commission may not render any binding decisions against unfair advertising communication but may publish its recommendations - in certain cases stating the advertiser's name.

World champion advertising relies on its own values
Lawful and successful advertising in the context of major events makes limited use of trademarks and copyright protected works of third parties only, does not attempt to suggest a connection to the organizers or sponsors where none exists, has an advertising statement that is not limited to the reference to a third-party event, focuses on the advertiser's own performance and is not dependent on the major event and the performances of the organizers and sponsors for the advertiser's own profiling.

Author: Delia Fehr-Bosshard

Categories: Digital Business Law Bites, Intellectual Property, Media and Entertainment, Sports Law

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