Ambush marketing and the legal issues to consider at the RWC 2015 and Euro 2020
Last week marked one year to go until England hosts the Rugby World Cup 2015 (RWC 2015)1. There were also big announcements for Wembley2 and Hamden Park as they were confirmed as host venues for UEFA’s Euro 2020 (Euro 2020) tournament, which is, for the first time, being hosted in multiple cities around Europe.
With more major events coming to the UK’s shores, brands and their marketing agencies will again be wondering what this means for them. In recent years, major events have clamped down on ambush marketing and other activities that can erode their commercial revenue, such as unauthorised trading around stadia, with special legislation being introduced to protect them.
Will there be specific legislation for forthcoming sports events in the UK?
International Federations responsible for awarding major events and tournaments have placed increasing demands on organising committees. Bidding rules normally now state that prospective host cities/countries must have, or commit to put in place, anti-ambush marketing laws and protected “clean” zones around stadia in order to protect the event’s official sponsors. This was the case for the RWC 2015 and Euro 2020. However, a closer examination suggests resistance from lawmakers to capitulate. In terms of special “event legislation” it seems the high watermark in the UK has already been reached and that the metaphorical tide is now receding.
For the London 2012 Olympic Games and Paralympic Games, and the Glasgow 2014 Commonwealth Games, new legislation was promised during the bidding stage and was subsequently introduced and implemented to satisfy the demands of the International Olympic Committee and the Commonwealth Games Federation , respectively3,4. These laws established an “association right”5 to prohibit ambush marketing seeking to ride off the coattails of the events, and provided for regulations that rendered unauthorised advertising and trading in the "clean" zones around stadia illegal. Ticket touting offences were also created6.
The International Rugby Board and UEFA might reasonably have expected that their tournaments were of equal prestige to the Olympic Games and Commonwealth Games and therefore should benefit from similar legislation. However, no special legislation or regulations have been introduced in respect of the RWC 2015 and, after reading UEFA’s evaluation of the English and Scottish Football Associations’ respective bid submissions for Euro 2020, there is no suggestion that any commitments to introduce legislation have been made. For example, the evaluation of the Wembley bid simply states, “ambush marketing is subject to no specific legislation but may be tackled using various existing laws”7.
So why is there a shift away from legislation? And why are International Federations accepting bids without solid commitments to implement their “requirements”? The answer could lie in the fact that implementing new laws is a lengthy and costly procedure, and ultimately International Federations will weigh up the pros and cons of all bids and are likely to always have to concede some of their demands.
There is perhaps also a realisation that, at least in the UK, existing legislation can offer a suitable amount of protection when used effectively, and special legislation does not always provide the slam-dunk solution. Ambushers in particular will always, it seems, find creative ways to get around the law.
What protection does existing law in the UK provide rights holders?
Organising committees will inevitably register trade marks in relation to their events – this is a relatively simple process and gives the trade mark holder the right to prevent others from using the same mark in relation to the same goods and services for which it has been registered, or similar marks in relation to similar goods or services.
Given their high profile, the events' trade marks are also likely to be considered as marks with “a reputation”8 thereby also benefitting from the wider rights afforded to such trade marks, allowing the owner to prevent the use of any identical or similar mark, irrespective of the nature of goods or services, where the use takes unfair advantage of, or is detrimental to, the mark.
Organising committees are also likely to have copyright protection in event logos, mascots and other relevant images which may give protection against counterfeiters and less sophisticated ambush marketers.
In the absence of special legislation creating an association right, it is harder to address clever ambush marketing which, whilst avoiding the infringement of the event’s trade marks or copyright, nevertheless attempts to create the impression that they are in some way associated with, or endorsed by, the event through other means. However, in such a situation the tort of passing off will provide an arguable cause of action.
The inherent difficulty legislating against ambushers
As such, major events do have a number of existing legal tools available to them to address ambush marketing, and even where special legislation has been in place ambushers have proved that they can get creative to get around it.
For example, during the London 2012 Olympic Games, Beats by Dre offered free headphones in national flag colours to athletes competing at the Games. The use of national flags did not infringe the association right and the headphones were simply given as a gift with no strings attached. Further, they were distributed from private premises well outside the regulated clean zones. Beats were not an official sponsor of the Games, any national teams, or all of the athletes involved, but nevertheless got significant exposure when numerous athletes were seen wearing the headphones both on and off camera. Although this proved challenging for the organisers, with limited options available to tackle the issue directly with Beats, contract law did prove useful as, by wearing the headphones at the Games, the athletes were in breach of their participation agreements.
Moving on to ticket touting, being a football tournament, the UEFA 2020 matches played in the UK will benefit from the Criminal Justice and Public Order Act 1994 , which prohibits the sale of tickets to certain football matches by “unauthorised persons”9. However, as the provisions of the 1994 Act are specific to football, the Rugby World Cup next year will not benefit from criminal sanctions against ticket touts.
Nevertheless, the Rugby Football Union has demonstrated in the past their willingness to take proactive steps using other facets of the law in order to disrupt ticket touting activity. For example, the RFU took Viagogo to the Supreme Court in 2011 and successfully sought an order for Viagogo to name individuals who were selling tickets on the Viagogo resale platform without the RFU’s authorisation10. Such activity disrupts the routes via which ticket touts can exploit their interest in the event.
Changing attitudes to legislation
So what does this all ultimately mean for brands and others thinking of undertaking marketing around these major events? Will the lack of special legislation in 2015 and 2020 mean it is “safer” to push the boundaries and employ ambush tactics? And will sponsors be exposed to competitors undermining their investment?
The reality is that clever ambush marketers will always find ingenious methods of circumventing the rules and regulations and savvy organising committees will be equally creative with the tools available to them. And these are not just legal tools; the power of PR and potential reputational damage to ambush marketers and ticket touts can provide a useful deterrent. Such tactics must be employed carefully though, as these can also backfire and their success may well depend on the public sentiment towards the event and/or the ambusher in question.
So while the Rugby World Cup and Euro 2020 matches in the UK will not benefit from quite as wide powers as the London 2012 Olympic and Glasgow 2014 Commonwealth Games did, ambushers and ticket touts should not be lulled into a false sense of security. The lines may not be quite so black and white, but significant risks of legal action still exist.
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
- Tags: Commonwealth Games 2014 | Copyright | Corporate Law | Criminal Justice and Public Order Act 1994 | England | Europe | Football | Glasgow 2014 | Intellectual Property | International Rugby Board (IRB) | London 2012 | London Olympic and Paralympic Games Act 2006 | Olympic Games | Paralympics | Rugby | Rugby Football Union (RFU) | Rugby World Cup 2015 | The Glasgow Commonwealth Games Act 2008 | Trade Mark | Trade Mark Act 1994 | UEFA | UEFA Euro 2020 | United Kingdom (UK)
- A guide to rights protection at major sporting events: part 1 – identify, prioritise and pre-empt risk
- A guide to rights protection at major sporting events: part 2 – educate, monitor and enforce
- A guide to rights protection at major sporting events: part 3 – be ready for surprises and maintain perspective
- How successful were FIFA and its sponsors at protecting their brands during the World Cup?
Alex is the Head of Lewis Silkin’s Sport Business Group. Her work focuses on advising entities across the sports sector on a wide range of predominantly commercial and IP issues.
Ash Rahmat is a Sports Group and Media paralegal at law firm Lewis Silkin LLP. Originally a Law with French graduate at the University of Birmingham, Ash spent a year working in the banking sector before pursuing his passion for sports law.