The Missing Link*: the coming out of ambush marketing?
In terms of sporting mega events, 2014 promises to be quite a year. It begins in February with the Olympic Winter Games in Sochi, is followed by the FIFA World Cup in Brazil in June and finishes with the Commonwealth Games in Glasgow in July, a spectacular schedule in terms of major global sporting festivals occurring so close together.
Whilst the focal point of these events is, necessarily, the respective sport or sports themselves, perhaps unsurprisingly the focus of their build up is often on issues not associated with sporting prowess. The pregnancy of any edition of the Olympics is often more concerned with issues of eligibility and governance and on navigating the various commercial and political issues that have a direct or indirect impact on the Games, rather than the sporting specifics.
For Sochi, commentary has focused on alleged corruption, unfinished venues, the wisdom of holding a festival of snow and ice based winter sports in a sub-tropical zone and, perhaps most visibly, the impact of Russia's so called 'anti-gay' law. This is embodied in Article 6.21 of the Code of the Russian Federation on Administrative Offences, a somewhat vague provision that allows the government to fine, and potentially detain, individuals who promote propaganda relating to non-traditional sexual relations to minors.1 These provisions apply to both nationals and visitors and, as such, have a potential impact upon Sochi 2014 on a number of levels. Brazil is also suffering problems with completing its stadiums on time and against a backdrop of social and political unrest. Glasgow appears to have avoided any significant negative publicity to date, whilst pressing ahead with a unique anti-ambush marketing campaign.2 Games organisers have entered into an agreement with the major hoardings operators in the city that will allow official sponsors first refusal on sites located not just within Event Zones, which are subject to legislative regulation, but to outdoor media sites in their immediate vicinity, a further example of extending the reach of sponsors' advertising in tandem with the on-going creep of legislative regulation in this area.3
One of the key debates relating to the organisation of any edition of these global events is the commercial relationship between the organisers and their chosen sponsors. Within such analyses, the issue of ambush marketing, and how to regulate it, has become a key battleground and there is no reason to believe that these upcoming events will prove different. Ambush marketing is an amorphous term. Broadly speaking it involves instances where non-official sponsors attempt to derive commercial capital from association with the events, often at the expense of official sponsors; examples of this are myriad.4 Sporting mega-events of this nature attract ambush marketing campaigns almost as a matter of course, with advertisers trying either to piggyback on the worldwide media interest surrounding the event or to deliberately and specifically undermine the exclusive arrangements entered into by the primary rights holders and an official sponsor that is a corporate rival of the ambusher. Instead of analysing the various contested definitions of ambush marketing,5 its rights and wrongs, or the specific legislation introduced to control it,6 the motivation behind three different campaigns that can be said, in different ways, to be ambushing Sochi 2014 will be discussed, with specific focus upon the Principle 6 campaign.
The Russian laws introduced to protect the commercial and intellectual property rights vested in Sochi 2014 have developed iteratively from those in place at London 2012.7 The protections afforded by the London Olympic Games and Paralympic Games Act 2006 and its subordinate legislation, created a new intellectual property right, the London Olympic Association Right, that prohibited any unauthorised commercial, contractual, financial, structural or corporate link to be made with London 2012. At Sochi 2014, the same basic framework is in place, however, the law has developed to ensure that the use of words or symbols that are similar to those directly protected by the Russian legislation is also captured.8 It is against this backdrop that adverts promoting Zippo, Nike and American Apparel need to be examined. Campaigns of this kind are often regarded as instances of ambush marketing by primary rights holders because they seek to leverage commercial capital from interest in an event like the Sochi Games. Alternatively, it could argued that they are subtly crafted, witty and playful campaigns that draw on moments of opportunism or long-standing relationships with specific sports and their star performers that are not full blown attempts at ambush marketing.
The ambushing of Sochi 2014 began early and is now gathering momentum. In October 2013, the flame of the Olympic Torch went out whilst being carried through the Kremlin. It was relighted by a plain-clothes police officer with what the well-known cigarette lighter company claimed was a Zippo lighter. In a move reminiscent of Specsavers and Paddy Power's humorous quick thinking, Zippo posted a picture of the incident on its Facebook page claiming in a tagged link that #ZippoSavesOlympics.9 Assuming the claim to be factually accurate, Zippo's specific reference to the Olympics was undoubtedly its downfall. Where the adverts produced by the opticians Specsavers, playing on the confusion over which Korea was playing in the Olympic football tournament,10 and bookmaker Paddy Power's sponsorship of the 'biggest sporting event in London', made no direct reference to London 2012 in particular or the Olympic Games in general,11 Zippo's claim to have 'saved the Olympics' by the use of one of its products is caught by making an unauthorised and direct reference to the Games in a commercial context. To avoid potential breaches of Olympic and trade mark law, Zippo altered its campaign after contact from Sochi 2014 officials; humour is no defence to an ambush marketing campaign.
In November, Nike launched another in its classic series of boundary-pushing, potentially unlawful advertising campaigns. At the time of London 2012, Nike exhorted athletes of all ages from 'Londons around the world' to 'Find Your Greatness'. Although there was no direct reference to London 2012 or any its participants, the repeated mentions of London in a sporting context were what constituted the potentially unlawful association with the Games.12 For Sochi 2014, viewers are challenged to 'Play Russian' and get outside in all weathers, whatever the temperature, and get involved with all sports.13 Although not yet challenged by the Organising Committee, there is an argument that as this advert goes further than the London 2012 campaign by using athletes likely to compete in Sochi 2014 and by focusing on sports such as ice hockey and skating that will be major and high-profile components of the competitive programme, it could fall foul of the law. Although the protective legislation is applicable only in the host country, the viral and online nature of these campaigns opens up the possibility that these, and country specific adverts such as Nike Canada's 'All ice is home ice',14 have the potential to be found to be unauthorised associations, as they can be viewed in Russia. This form of ambush marketing, where any association with the event is deemed to be problematic, is analogous to the problems that surrounded the attempt by easyJet to use Sally Gunnell replicating her iconic Barcelona '92 pose to launch Southend Airport, which was deemed a breach of the London Olympic Association Right by a LOCOG official in attendance at the photo-shoot.15
Both of the above are interesting examples that show attempts to test the elasticity of the legal boundaries and parameters of ambush marketing. However, the following example is perhaps most important here, as an ambush of a very different nature can be observed. As noted above, the adoption of anti-gay legislation in Russia has provoked much international protest, with numerous responses led by LGBT rights groups and activists. Whilst initial reactions to the passing of this law tended to be suggestions of boycotting of the Games, or of attending but making significant gestures such as having pairs of same sex athletes holding hands at the opening ceremony,16 the groups Athlete Ally and All Out eventually decided on an alternative which involved utilising the IOC's own rhetoric in a very clever protest. Principle 6, in the pre-amble to the IOC Charter, states the following:
Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement. [emphasis added]
The campaign, initiated by Athlete Ally, appropriated this principle under the tag 'P6' as a means of drawing attention to the fact that the IOC decries discrimination of any kind and then, by allusion, rebuking Russia's anti- gay laws as falling foul of one of the cornerstones of Olympism. The group saw this as something that could evolve in much the same way as the (now unfortunately somewhat discredited) Livestrong campaign and perhaps lend itself to some sort of motif or bracelet that could be worn as a show of solidarity. In the event, the clothing manufacturer American Apparel agreed to manufacture a number of items and the Principle 6 website notes that 'wearing the merchandise will help uphold the Olympic principle of inclusion and underscore that Russia's anti-LGBT discrimination is incompatible with the Olympic movement.' In addition, proceeds from the sale of merchandise will go to support the campaign and help the fight against discrimination in Russia.
All very laudable, but what we are seeing here is a different, and subtle, form of what might be termed 'double ambush marketing'. In this situation, the IOC itself is being ambushed by the use of its own principles against it by American Apparel, who are neither IOC nor Sochi 2014 sponsors but are able to garner reputational capital from their 'detached association' with the campaign as manufacturers of the garments. The IOC is unlikely to take a strong stance against the Principle 6 campaign as it is merely reinforcing and celebrating the IOC's own avowed principles, despite being capable of being caught by the anti-ambushing legislation; the commercial context here is provided by revenue raising for a charity. In any event, the athletes themselves are bound by provisions that prohibit any kind of political or religious demonstration by Rule 50 of the Olympic Charter and athletes wearing P6 merchandise are likely to fall foul of this provision. Indeed, IOC President Thomas Bach has recently re-iterated that all athletes will be written to prior to the Games reminding them of their duties under Rule 50. These restrictions on free speech, brought in after the infamous Black Power salute in 1968, are imposed on everyone taking part in what is claimed to be a simple sporting, cultural and educational festival. What we are seeing are increasingly sophisticated attempts to circumvent the hyper-regulation of intellectual property rights associated with events alongside a return to the broader debate on the aims and ethical underpinning of the Olympic Movement.
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- Ambush marketing laws and the power of exclusivity: lessons from New Zealand and South Africa
- Sponsorships contracts: morality, reverse morality and integrity
- Potential legal issues arising from the Sochi Games, World Cup Brazil and Glasgow 2014
- The Games must go on: 2014 Sochi Winter Olympic Games and the National Hockey League
Professor Mark James re-joined Manchester Law School in January 2016. He began his academic career at Anglia Polytechnic University on a research scholarship, examining the scope of the consent given by participants in contact sports to injury-causing challenges. His first appointment at Manchester Metropolitan University was in 1997 to lecture in criminal law and sports law and to develop its innovative MA (Sport and the Law).