Ambush Marketing: the never-ending struggle with the ‘smart guys’.
Since the 80ies of the past Century, all major sports events (such as Continental or World Championships or Olympic Games), drawing broad media coverage and attracting huge audiences, had to face the marketing practices of brands unsuccessful – or unwilling - to become official sponsors of such events but keen to take advantage of the general interest stirred by them. Such practices were soon labelled as ‘ambush marketing’.
No wonder that the organizers of these events as well as the official sponsors – which usually, through their economic contributions, sustain a substantial part of the cost necessary to the performance of the event – were all but happy about the tricks of the ‘smart guys’, quite successful in ambushing away part of the events’ global resonance and of sponsors’ brand recognition.
After an initial annoyance, the International Sports organizations (e.g. FIFA, UEFA, IOC, etc.) felt necessary to take more effective steps and therefore inserted into the agreements with the organizing countries and their national committees an obligation to provide suitable IP protection for the official sponsors’ brands. Such obligation was usually fulfilled through ‘event specific’ – and sometimes even temporary – laws or regulations, adopted by the organizing country.
When Italy was chosen as hosting country of the 2006 Winter Olympics, the House adopted Law no. 167 of August 17, 2005, introducing temporary provisions (in force until December 31st, 2006) to protect official sponsors' rights. Such provisions addressed specifically the practice of ambush marketing, defined as "activities parallel to those undertaken by economic or noneconomic bodies authorized by the organizers of the sporting events, with the aim of making a profit" and considered as illicit.
It must be acknowledged that, despite those efforts, ‘ambush marketing’ continued to surround all major international events over the following years as the smart guy’s creativity with respect to circumventing legal hurdles appears to have no limits.
Now we are at it again.
Hence, periodically the problem shifts into the focus of national lawmakers, i.e. any time an international event involving the country appears on the horizon.
As far as Italy is concerned, the next round for the confrontation between organizers and official sponsors, on one side, and the ‘smart guys, on the other, is set to take place very soon.
In June and July 2020, Italy will be hosting the opening game (as well as some other games) of Group A of the Euro 2020, UEFA’s European Soccer Championship. A bit further on, the 2026 Winter Olympics are again taking place in Italy.
So, how are we preparing for such events and the ambush marketers’ tricks?
A different approach.
As previously mentioned, the problem was frequently addressed through ‘event specific’ regulations. As this had proved only partially effective, the Italian Government is now thinking of a different – and more structured – approach.
To the purpose, the Government in January 2020 has prepared a bill of law, meant to offer protection against this kind of unfair practices by adapting and integrating the ordinary unfair competition rules.
Which events will the new bill cover?
The new measures –once approved by the House – would insert ambush marketing into the context of unfair competition practices and would cover national and international sports events as well as trade fairs or exhibitions of national or international relevance. With respect to such events, all unauthorized ‘parasitic’ promotional initiatives, if aimed at achieving economic or competitive advantages, would be banned.
What will be considered as ‘parasitic promotional initiatives?
According to the bill, the following will be considered as ‘parasitic promotional initiatives’:
- forging an association (even if indirect) between a trademark or distinctive sign of a third party and one of the events mentioned in the paragraph above with the purpose of deceiving the public about the event’s official sponsor,
- claiming in promotional messages – without any proper title to do so - to be an official sponsor of the event,
- promoting, without the organizer’s authorization, an owned trademark or distinctive sign during an event (or in the surroundings of the event’s location) with the aim to attract the attention of the public,
- selling or merchandising products or services featuring (even if only in part) the event’s logo or other distinctive signs, capable of conveying the impression of an association with the event or its organizer(s).
The definitions above will not refer to the conducts performed in execution of sponsoring agreements with individual athletes, teams, artists or authorized participants to the event.
When will these provisions become effective?
Curiously, this ban will not be a total one. The provisions will become effective 90 days prior to the event’s start and will remain in force until 90 days after the event’s termination.
What will happen in case of infringement?
Aside from the potential criminal relevance of the illicit conduct, infringement of the provisions will be sanctioned through a fine, which may vary between a minimum of Euro 500.000 and a maximum of Euro 2.500.000. The Commissioner for Market and Fair Competition will oversee enforcement.
These will be ‘additional measures’, hence all other remedies offered by the local legal framework to individuals or companies harmed by illicit conduct remain available.
To enter into force, the bill will have to be confirmed by the Italian Parliament. As to the effectiveness of the new measures, we will have to wait for the Euro 2020 Soccer Championship taking place to find out whether they work or not.
Until now, the smart guys have always found a way to find some loopholes in the system and to take advantage of events with an international resonance