The Ambush Marketing Conundrum and Protecting the Olympics’ Trademark

Introduction

The Olympics bring with them a period of international frenzy and excitement. What began as a
domestic competition in Greece, at an estimated period of 8 th Century BC, has now evolved into
a global, multi-sport and jubilant competition. The foremost modern Olympic game was held in
1896 Athens, after the formation of the International Olympic Committee (IOC) in 1894. In the
contemporary times, the Olympics are held in every four years, with athletes participating from
over 200 nations. With the games evolving at such a large extent, a gradual need of larger
funding was made apparent. The solution was realized in the form of private funding by the
interested multi-national corporations, given the global popularity and viewership of the games.
This called for a revamp in the Olympics regulations so as to provide uniqueness, commercial
value and efficient sponsorship rights. As an aftermath of the IOC revamp in regulations, the
1984 Los Angeles Olympics was the first one to be conducted solely on the basis of private
funding. The remaining companies which failed in the bidding process, and hence got no
sponsorship rights, took to other creative means of gaining popularity, such as that of ambush
marketing.

Ambush marketing (predatory ambushing) is a tactic through which companies attempt to

affiliate themselves with a popular global event, such as the Olympic Games, the World Cup, the
Indian Premier League, etc. without actually being the official sponsors of such events. Through
this tactic, companies aim to cash-in on the popularity of such an event, simultaneously
sabotaging the exclusive rights of the original sponsors who pay a hefty amount of money for the
same and intellectual property rights of the event organizers as well.

In this article, we will take a look at how the ambush marketing is actually related to intellectual
property rights and their enforcement. Furthermore, we will study about the infamous cases of
ambush marketing throughout the Olympics’ history. We will also make an attempt at
understanding the various regulations synthesized by the IOC in order to establish a stringent
control over such commercial tactics. At the end, we list out some ways of tackling such
marketing practices without jeopardizing the legitimate companies’ interests.

Ambush Marketing and Its Relation with the Intellectual Property Rights

The term ‘Ambush Marketing’ was coined by In order to clearly understand the direct relation
between ambush marketing and IPR/trademark infringement; we need to have a clear
understanding of various types of Ambush marketing strategies.

1. Direct Ambushing1
The most serious forms of ambushing strategy, direct ambushing is the gravest form of
all the ambushing strategies. In this, a company intentionally adopts aggressive measures
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 so as to affiliate itself with a popular event. It involves making unauthorized use of logos
and other symbols associated with the specific event.

2. Associative/Opportunistic Ambushing2
A rather mild version of direct ambushing, Associative ambushing involves making use
of such images or symbols which creates an illusion among the customers that a
particular brand is associated with a popular event. This doesn’t involve any kind of
reference to the certified sponsorship.

3. Incidental Ambushing
This is arguably the most legal form of ambushing among all three mentioned here. Here,
the customers assume that a company is the official partner of a big event without any
efforts being made on the part if the company itself. It may also include a rather murky
tactic of bombarding advertisements near the time of occurrence or the physical vicinity
of a global event.

As is somewhat evident from the definitions, the ambush marketing strategy has some occasional
brushes with the intellectual property domain. In order to better understand the connection, let us
briefly discuss various cases from the history of major sporting events.

Since it is an easily recognizable and a grave offence, there are comparatively few examples of
direct ambushing. A stark example of this was the unauthorized use of FIFA’s official logo by
Sprints Communication Company. This occurred during the 1994 world cup, when the company
avoided seeking permission from either the event organizer or Master Card (having the sole-
proprietorship of FIFA’s official logo for that season).

There are numerous examples of Associative ambushing. The one which can best describe the
practice comes from the 2008 Summer Olympics held in Beijing. In the event Nike, a major
sports brand, made hefty use of the no. ‘8’, considered being a sign of good luck in China, while
also being a recognizable identifier of the games.

Leaving the incidental ambushing tactics, the direct and even the associative ambushing tactics
are recognized as being in violation of the IP rights all over the world. Such strategies have been
deemed unlawful on the grounds of copyrights and trademark infringement. These strategies are
identified as unlawful passing off, unjust competition and violation of advertising rules in the
UK, Germany and France respectively. Similarly, in order to protect the commercial rights of
sponsors in the upcoming major sporting events, Italy enacted Law Decree No. 16/2020 on
March 14, 2020.

The Indian laws also recognize these ambushing tactics as being unlawful in nature. The
Trademark Act 1999 offers legal protection from direct and even associative ambushing under

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https://www.wsj.com/articles/SB10001424052970204731804574391102699362862
Section 29. The section says that in case a rival company tries to jeopardize the rights of an
official sponsor (associated with an event) by using the official or deceptively similar symbols,
then the aggrieved company can allege trademark infringement against the rival company.

However, it is essential to note that in cases of indirect infringement, where the companies don’t
necessarily use the event’s logo and rather than use their own in a manner so as to get associated
with it, the above regulations are rendered moot.

Protecting the Olympics Trademark

The Tokyo 2020 Ambush Marketing Report, released by Global Marketing Language (GML),
helps in tracing the damage done by the Non Affiliated Marketers (NAM). The organization
analyzed millions of data points across the internet and created the “Economic Value Unit
(EVU)” to indentify, in dollars, the loss in value to the Olympic Partners (TOP). The results were
astonishing. There was a difference of only 1.49 units in the mean score of TOP and NAM. What
this means is that the ambush marketers get to enjoy the same benefits which the TOP partners
achieve after the payment of a hefty sum of 1 Billion USD.

In order to ensure the protection of sponsor-rights as well as the Olympic symbol, the IOC has
timely updated its laws and directives to be followed by the hosting nations. This becomes even
more significant given that the Olympics broadcasting and IP rights make up for 73% of the
Committee’s income. This is succinctly summarized in IOC President Jacques Rogge’s statement
“We have to protect the sponsors because … without sponsorship there are no Games.”

The IOC recognizes ambush marketing as “cheating” which “causes damage to the Olympic
Movement by devaluing the Olympic brand.” In order to ensure protection, the Committee has
even gone to great lengths such as in the case of NZOCG v. Telecom NZ (1996) 35 IPR 55. In
this case, the Telecom NZ displayed the word ‘ring’ in the same color palette as used in the
Olympic rings so as to ambush its rival and sponsor of the NZ Olympic team, Bellsouth. The
New Zealand Olympic Association (NZO) took to court and claimed that it can potentially create
confusion among the minds of people regarding the official sponsor.

The Nairobi Treaty on the Protection of the Olympic Symbol, signed in 1981, ensured that all the
signatories were obliged to “refuse or to invalidate the registration as a mark and to prohibit by
appropriate measures the use, as a mark or other sign, for commercial purposes, of any sign
consisting of or containing the Olympic symbol, as defined in the Charter of the International
Olympic Committee.”

During the selection of host cities, IOC obliges the bidding nations to ensure that appropriate
domestic regulations provide the required protection to the Olympic property. This is visible in
the enactment of Law Decree No. 16/2020 on March 14, 2020, in Italy, given that it’s the official
host of the Milan-Cortina 2026 Winter Olympics.

Similarly, the London Olympics Association Right (LOAR) enacted the London Olympic Games
and Paralympic Games Act 2006 to provide protection from “the infringement for the contextual,
or associative, reference to the Olympic property and creating false and misleading association
with the Games.” The act went on to establish strict regulations and even prohibited the use of
terms such as “games”, “Two Thousand and Twelve”, “2012”, “twenty twelve”, gold, summer,
etc.

The United States Olympic & Paralympic Committee (USOPC) also saw a big win recently with
the creation of statute (36 U.S.C. § 220506) under the Ted Stevens Olympic and Amateur Sports
Act. The statute will help the committee in fighting off trademark infringements falling under the
list of its recognized trademarks. February, 2021 saw a legal brush-off between the USOPC and
Puma, a multinational sports brand. Puma tried to register the trademarks, “Puma Tokyo 2021,”
“Puma Beijing 2022” and “Puma Paris 2024” which was denied by the USPTO given the similar
pre-existing trademarks of the USOPC. This resulted in a legal battle between the USOPC and
Puma regarding a number of these trademarks, ultimately won by the USOPC.

Conclusion and the Way-Forward

The IOC is taking appropriate actions in order to ensure that the IPR protection laws don’t lag
behind the strategic advancements in rival companies’ ambush marketing tactics. With a
continuous exponential increase in the competition in corporate bidding arena, companies are
rolling out more such tactics that can ensure their continued monopoly in their respective
domains. IOC’s subsidiaries in various nations continuously ensure that the sponsors’ rights be
adequately protected and are fighting tooth and nail for the same.

However, the committee also needs to ensure the presence of an efficient enforceability
mechanism and a just & fair grievance addressal system so as to avoid severe criticism with
regards to a violation of the freedom of commercial speech. Tight regulations on diverse
marketing strategies must be avoided under the garb of the IP laws. Focus should be shifted on
an efficient execution rather than an unjustified increase in such regulations. Only then can a
proper balance be achieved between the public interests and “right holders’ monopoly.”