INTRODUCTION
Ambush marketing is an unethical practise that is prevalent across the globe. Although there are advantages of such practises, it gives companies using this unethical practice a wager over other companies who have already invested in the sponsorship through paying the sponsorship fee. Such instances create economic problems as well as affects the public at large as consumers and hence the need of legislation for such a practise is required.
This blog aims to cover the topic and understanding what ambush marketing strategies are, what are the legal defences available as of now in India and finally what measures can be taken by the Indian legislation to curb this unethical practise of Ambush Marketing.
AMBUSH MARKETING
Ambush marketing can be considered as unexpected intervention from certain companies to create an impression upon spectators or customers that they are associated with an event for which another company has already committed financially by giving the sponsorship fee. Some people also like to refer to the ambush marketer i.e. the company using this unethical marketing practise as 'uninvited guest'.
For example, the NIKE case wherein they managed to deceive the audience into believing that they were the official sponsors of the event. They managed to deceive by tactically buying all the billboards and making a NIKE village to awe the people and engage them with their company.
WHY SPONSORSHIP?
Money that is invested, usually by a company, to support a person, organization, activity, or an event1. Companies are trying to associate themselves with entertainment industry, through sponsoring events and coming with campaigns during the span of the event to gain themselves a better advertising platform. People engage themselves watching sports and sports has higher popularity and public appeal, hence companies are the primary beneficiaries of sponsorship during the times of events like IPL or World Cup to get a better advertising platform. In the context of this blog, it is very important to understand the concept of sponsorship as ambush marketing occurs in the context of sponsorship of events. It is also very important to note that a successful sponsor is one who becomes synonymous with the event. But due to the practise of Ambush Marketing certain companies can capitalize on the goodwill, reputation, and popularity of a particular event by creating an association with such events without any authorisation or paying the sponsorship fee.
One instance can be the FIFA World cup of 2014 wherein the came up with a three-tier system of sponsors where the first-tier sponsors will have more rights and advantages compared to second-tier and the third-tier, although making a hierarchical system, the amount paid to get such sponsorship for a better engagement depends on the same system where the first-tier companies have to pay more than the rest two. It was evidently seen that such system was helpful since the first-tier companies got a better engagement compared to the rest of the tier companies.
WHO DOES AMBUSH MARKETING AFFECT?
- Sponsors – No doubt, sponsors are the people who gets affected the most during an ambush marketing campaign. The sponsors do have an exclusivity right that they get after paying a huge sum of sponsorship fee in the hopes that their companies name will be associated with the event that they have invested in. Ambush marketing affects their exclusivity rights by getting their companies name associated with the event through such campaigns and without payment of the sponsorship fee.
- Event Organisers – Sponsorship is one of the most important ways of revenue for the event organisers in the world. Since ambush marketing affects the sponsors and their investment, if there happens to be a successful campaign of Ambush marketing then, such Sponsors tend to take their investment out of the event. This reduces the sponsorship value of the event in future as well. Hence, Ambush marketing shall be an unethical practise and requires the legislation to formulate regulations for such practise.
- Consumers – Shockingly, ambush marketing also affects the consumers in certain instances. Consumers get deceived by such marketing practise which makes it more unethical, because that's the goal of Ambush marketing i.e. deceiving the consumers into believing that the uninvited company is the official sponsor of the event.
Now, that it has been clear that such a practise of ambush marketing by the companies is mainly done to unethically deceive the audience and take away exclusivity rights from the official sponsors. It becomes important to discuss the legal issues pertaining to this problem. These legal issues are discussed further in the blog keeping only Indian scenario in mind.
LEGAL DEFENCES AVAILABLE AND THEIR LIMITATIONS
IPR (Intellectual Property Rights)
Ambush Marketing infringes the IP rights of an event. Intellectual property rights (IPR) refer to the legal rights given to the inventor or creator to protect his invention or creation for a certain period of time2. One may think that, whether the remedies available for the infringement of IPR can be used for the infringement of the rights or copyright infringement action done by ambush marketing.
The trademark infringement happens when a company
other than the registered proprietor uses a similar logo to that of
the registered logo to deceive the audience and get more engagement
through this kind of infringement. Hence, IP rights are given to
such registered proprietor to maintain their exclusivity. If
pondered upon this scenario, it becomes clear that such type of
infringement is also a part of Ambush Marketing to Indirectly get
the audience.
Trademark Infringement Action can be used against ambush marketing
in certain situations. For example, Tata successfully has already
registered their TM for 'Indian Priemer League' then no
other company can use their TM or similar trademarks to engage with
audience. If they do so, then the company Tata will have a locus
standi to approach the court on the grounds of TM infringement.
Another instance would be when the companies get additional
protection as well-known marks. In the instant example used
previously, if the Tata company proves that the TM 'Tata
IPL' is in use for a long period of time as well as it is well
reputed amongst the audience, they can claim defence on such
grounds and may also approach the court.
LIMITATIONS OF TM INFRINGEMENT
Although, TM infringement may help the companies approach courts. Companies practising Ambush marketing are not so vague in practising such practice. The companies do no directly or indirectly use the sponsor's TM's but advertise in a way that they deceive audience into thinking they are the official sponsors of the Event, this is mostly done through the campaigns held by them. One such instance is 2014 FIFA World Cup, although the Official Sponsors were engaged in advertising campaigns and billboards like usual sponsors, NIKE launched their video featuring Neymar JR. a well reputed football player and managed to get more engagement through the YouTube video than the official sponsors, managing to deceive the audience as well as indirectly ambushing the market. Through this case it becomes evident that such ambush marketing campaigns will be done indirectly and discreetly without creating any liability.
COPYRIGHT INFRINGEMENT ACTION
Such protection exists in different cases relating to the event, for example any other company using the registered sponsors logos to deceive the audience. Although there have been instances where this has helped companies exercise their rights, it's application on the cases of Ambush marketing becomes very less likely. Since, most of the ambush marketing companies indirectly uses such logos while advertising which makes it difficult to bring them within the parameters of a copyright infringement action.
EXAMPLES OF OTHER COUNTRIES
Even though there exist such legal remedies for Ambush Marketing they are not rigid and have a very limited circumstances where they can be applied, and sponsors may approach the court. Considering this there is still a need in India to legislate such matter to give the sponsors a sense of security as well as a rigid defence to exercise their Exclusive rights.
Other countries like Australia and England have legislated laws for the same, both the countries bought in such a law where the advertisements or any other form of engaging audience will be allowed to regulate. Such regulations brought in by the countries have helped them reduce such unethical practises of Ambush Marketing. Such instances can be used a stepping stone by the Indian Legislation and the discretion may lie with the Judiciary in the courts to deal with this type of unethical practise, which affects a huge number of people as well as the finances of the companies that have been used to pay the sponsorship fee.
CONCLUSION
It is important to understand that such ambush marketing is prevalent all over the world and is used because of its advantages such as cost savings and creative engagement. Although such practices have advantages for the deceiving company, it takes away all the exclusivity rights given to the sponsors as discussed earlier. No doubt such practise of Ambush marketing is a debatable issue, unfortunately India does not have any rigid laws or regulation in place to curb this unethical practise.
It is quite evident with the discussion before that there is availability of reliefs such as trademarks and copyrights etc to deal with such ineffective practise, they deem to be ineffective. There is a need to adopt multi-pronged strategies and learn from other countries like Australia and England, to implement regulations and law to govern such practises. Also, it is important that such laws and regulations adapt well with the public interest as well as puts limits on the ambushing companies to curb the problem of Ambushing marketing practises.
REFERENCES
- Shipley, G., Vanderspoel, J. and Mattingly, D.J. (2008) The Cambridge Dictionary of Classical Civilization. Cambridge: Cambridge University Press.
- Letterman, G.G. (2001) 'IP conventions, treaties, agreements, and similar undertakings', Basics of International Intellectual Property Law, pp. 99–164. doi:10.1163/9789004480445_007.
Footnotes
1. Shipley, G., Vanderspoel, J. and Mattingly, D.J. (2008) The Cambridge Dictionary of Classical Civilization. Cambridge: Cambridge University Press.
2. Letterman, G.G. (2001) 'IP conventions, treaties, agreements, and similar undertakings', Basics of International Intellectual Property Law, pp. 99–164. doi:10.1163/9789004480445_007.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
