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Sponsorship is a highly flexible medium providing access to various audiences such as internal staff, business decision makers, government regulators, and consumers, most corporate sponsors seek to communicate with the latter. Companies use sponsorship to fulfill the primary marketing communications objectives of creating brand awareness and enhancing image, although they sometimes explicitly seek and achieve bottom-line sales results. Sponsoring an event simultaneously attracts and provides access to an audience. It differs from conventional advertising in that both message and medium are inextricably linked. The event generates the audience while concurrently sending a message to that audience about the event’s values. Each sponsorship property or vehicle has certain associated images in the consumer’s mind that transfer to the sponsor.1
Question: In a case where a company or a group thereof organized/sponsored an event, can non-sponsors promote their product thru usage and/or carrying of a trademark, resulting to the use of competing marks in a corporate-sponsored event? The answer would be in the negative. Such act would be tantamount to ambush marketing.
Ambush Marketing, also known as “guerilla marketing or “parasitic marketing” describes any kind of behavior of a party that strives to associate with an event in order to profit from it without making any of its own contribution or sponsorship fees.2 The act of “ambushing” often involves competitors of the official sponsors and the intention is to increase their own level of public awareness and to link their company image with the attributes ascribes to the sporting event. In the process, there shall be an active attempt to confuse people as to who is the official sponsor or who are sponsors of an event and who is not.3 Corporate sponsors see ambush marketing as a threat to the expected value of the sponsorship contract that they have purchased. It also allows the ambusher to ingratiate itself with the consumer beneficially.4 An ambush marketer can associate with a major event without large-scale investment in securing rights and thereby fulfill brand awareness and image objectives at low cost which are benefits usually available only to the official sponsor. It also generates goodwill in favor of the ambusher, which is a consumer’s natural reaction to support for an activity of which he or she approves.
M. Hiestand, “Ambush Marketing Becomes an Olympic Event,” Adweek, 17 November 1987, pp. 2–4.
McKelvey/Grady, Ambush Marketing: The Legal Battleground for Sport Marketers, 21 WTR Ent. & Sports Law. 2004, pages 8, 9; Dalakas, Vassilis, Robert Madrigal, and Rick Burton (2004), “Understanding Ambush Marketing: Implications of Information Processing,” in Sports Marketing and the Psychology of Marketing Communication, eds. Lynn R.Kahle and Chris Riley, Mahwah, NJ: Lawrence Erlbaum Associates, 293 –304. 4 B. Ettorre, “Ambush Marketing: Heading Them Off at the Pass,” Management Review, volume 82, March 1993, p. 5
Flanagan. unpublished dissertation. Countries like the USA. there is interfered information processing which impedes the consumer’s ability to select and interpret stimuli. 312–21. Direct ambush marketing includes measures whereby the unauthorized company suggests to the public that it is an official sponsor of an event. and Cassandra L. T. 33 (December). Michael S. market created the impression of Olympic involvement. Clinton S.L.As a result. Studies of the 1992 Olympic Games8 showed that many non-sponsors that aired commercials during Olympic broadcasts in the U. in case of the absence or insufficiency of laws to apply to a certain situation. The net effect is that the official sponsor may derive considerably less benefit from its involvement. A6 10 R. Ambush marketing measures can be multifaceted and range from the unauthorized use of protected signs or terms of the organizer to creative advertising strategies without any use of protected rights..S. Examples are the following: In the Civil Code of the Philippines. 1993) . Turner. Rhode Island: Performance Research Inc.6 Such confusion is completely undesirable for the sponsors because it puts a huge dent to their investment denying the legitimate sponsor clear recognition for its sponsorship role. “Customer Confusion: The Mobile Phone Market. “Sponsorship-Linked Marketing: The Role of Articulation in Memory.” The Atlanta Journal/ The Atlanta Constitution. Ambush marketing is labeled as a prohibited marketing activity and is taken seriously. South Carolina: University of South Carolina. One of the most common methods in an events ambushing is the use of advertising strategies either directly or indirectly.5 The Consumer’s failure to develop a correct interpretation of various facets of stimuli during the information processing procedure is described as consumer confusion. Ambush Ads Hit. Indirect ambush measures are more subtle measures undertaken by a company through different forms of association. there are several pertinent provisions: The Doctrine of Abuse of Rights found in Articles 19.” Journal of Consumer Research. Peter W. the recollection of sponsors might be reduced.K. Sheena Leek.13 8 Performance Research Inc. France and Germany deem ambush marketing as tantamount to unfair competition. Unjust Enrichment of Article 22 and Article 28 which creates a right of action to one who suffers by reason of Unfair Competition Articles 19. Humphreys. no. In the U. meaning. Maguire. 6 Turnbull. “Circle the Rings.9 Using association with the event as a success indicator. 3 March 1992.. Olympic Sponsorship Study (Newport.. either by intrusion and/or by association. 143–63 7 Curthoys/Kenndall. Angela M. Bettina. In the confusion. the catch-all provisions may be 5 Cornwell. 1992) 9 M. 16 (1–3). Thus diminishing the goal of awareness development.10 Legal and Ethical Framework In many countries. 20 and 21. “A Study of Corporate Sponsors and the Feasibility of an Ambush-Free Olympic Games in Atlanta” (Columbia. p.. provide for a workable solution to the threat or to serve as a basis for sponsors who are prejudiced by ambush marketing.” Journal of Marketing Management. Ambush Marketing and the Sydney 2000 Games (Indicia and Images) Protection Act: A retrospective. ambush marketing constitutes the crime of unlawful passing off wherein the insignia and identifying features of an event can be protected under the common law if they are well known and enjoy repute to the extent that persons seeing such insignia call the event to mind. 20 and 21 of the New Civil Code of the Philippines are “catch-all” provisions. Tellegen (2006). Weeks. and Grace Ying (2000). it was determined that many non-sponsors outperformed the official sponsors in the relevant categories. The Philippines does not have a special law to address the dangers of ambush marketing but there are various general laws which may to an extent.7 The effectiveness of market ambushing is not disputed.
xxx When an ambusher that has not bought specific rights gives the impression that it is involved in an event. Laczniak and P.. G.” Laczniak and Murphy state. According to Kantian moral theory.E Bowie. in his pursuit of self-interest without contribution is actually engaging in an activity which sabotages the greater good. such theory creates an impression that an ambusher. And lastly. False Description or Representation of which pertinent provision provides as prohibition to one that: xxx Is likely to cause confusion. Tiu. New Jersey: Prentice Hall. 1 February 2002. Rights.R. Murphy. Ethical Theory and Business (Englewood Cliffs. 27 Phil. Deceptive or Misleading Advertisement” as well as to “unconscionable sales practices in both goods and credit transactions” Sections 168 and 169.E. 375 SCRA 614 Alhambra Cigar & Cigarette Manufacturing Co v. argue that their actions are perfectly legal and ethical within the 11 12 13 See Ong Yong v. At that juncture. services. p. 144476. 1993).14 Ambushers such as Jerry C. Ethical Marketing Decisions —The Higher Road (Boston: Allyn & Bacon. the ethics question arises. No. or association of such person with another person. 266 (1914) T. The “true test” of unfair competition as jurisprudence laid in a case12: whether the acts of defendant are such as are calculated to deceive the ordinary buyer making his purchases under the ordinary conditions which prevail in the particular trade to which the controversy relates Article 110 of Republic Act 7394(Consumer Act of the Philippines) Philippines imposes penalties on “False. eds. former head of worldwide marketing at American Express and a proponent of ambushing. Ambushers may find solace to the fact that there are schools of thought that are actually in its favor. sponsorship. or approval of his or her goods. the ambusher deliberately associates with and exploits an event’s spirit without breaching the letter of the law.1 of R. but for the sake of obligation. 30 . utilitarianism basically states that a decision concerning corporate conduct is proper if and only if that decision produces the greatest good for the greatest number of individuals. or as to the origin.13 which believed that a perfectly rational being must also be perfectly moral because a perfectly rational being subjectively finds it necessary to do what is rationally necessary. Regulation and Remedies as well as False Designations of Origin. Because humans are not absolutely rational considering men partly act by instinct. such as the Utilitarian theories.” Contrasting theories. Kant believed that humans must conform their subjective will with objective rational laws. equity and good conscience”. come down in favor of the greatest good for the greatest number. which relies on universal standards of goodness and the motivation to fulfill one’s duties and obligations.utilized to cater to the exigencies present. It “maintained that moral action must be motivated by obligation alone” and “that all persons must act not only in accordance with obligation.” In a nutshell. Jurisprudence 11explains: “There is unjust enrichment when a person unjustly retains a benefit to the loss of another. 1993). 30 14 G. connection.R. Mojica. Welsh. Good is usually defined as net benefits that accrue to the parties affected by choice. or to deceive as to the affiliation. “In an organizational context. p.L Beauchamp and N. or to cause mistake.A 8293(Intellectual Property Code of the Philippines) refers to Unfair Competition. or when a person retains money or property of another against the fundamental principles of justice. In such instances. those which are in pursuance of universal principles regarding fair business practices and its responsibility to further the best interest of its stockholder to justify its acts. or commercial activities by another person.
ethical matters shall still exist. at least a modicum of intelligence. p. 16 One may even argue that Jurisprudence17 itself has held that the ordinary purchaser must be thought of as having.. it such should never prosper. Conclusion Fundamental is the right of expression. 68. Brewer. and G. He suggests that “there is a weak-minded view that competitors have a moral obligation to step back and allow an official sponsor to reap all the benefits from a special event. and stealing requires no validation because the evil it poses speaks for itself. G. No. It is logical that one should reap what he sowed. but such right is not absolute especially if it shall transgress upon rights which are protected by virtue of laws or contract. volume 145. the existence of competitors in a sponsored event should not be considered as a negative element being that man will eventually support a brand which it likes. In a similar fashion. In fair business practice perspective. February 2. Luisa. No matter how wonderfully crafted semantics or brilliantly executed contraventions of existing laws. 11 September 1993.R. 3-4 16 17 McDonald’s Corp. ambush marketing is an important commercial tool and a natural result of free competition. Academic journal article from The International Sports Law Journal. 15 Bayless (1988). 2007 . B1.”15 For the ambusher. Such underpins the fact that the existence of a risk creates a major threat to the viability of sponsorship of events and thus for the holding of events since. regardless of its status of sponsor or non-sporsor. MacJoy Fastfood Corp. v. Meaning. “Be Like Nike?. October 2008 No. ambush marketing is wrong because it threatens the ability to retain top-paying sponsors. Though there are arguments and points that may be raised in attempt to justify Ambush marketing. it is suggested that the sale of one’s property should result in the economic benefit going to the owner or seller. and credited with. But from a general perspective. p. 1166115. Leone. which may be applied in marketing methods. Ambush marketing is basically stealing.framework of normal business. many sporting and entertainment events are not economically viable and cannot be staged without the sponsorship.” Sales and Marketing Management. the sponsor as buyer should reap the rewards of its investment and be protected in doing so.
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