Howzat?! Ambush marketers “caught behind” by well-drafted, far-reaching contracts

Last year we blogged on ambush marketing at the 2010 Soccer World Cup.  With the ‘cricket equivalent’ kicking off a few days ago, it’s interesting to see that the ‘ambush marketers’ are at it again.

Indian captain, Mahendra Singh Dhoni was reprimanded last week by the International Cricket Council (ICC) for breaching standardised squad terms for the World Cup event.  The breach related to Dhoni’s appearance in Sony ads in the days leading up to the World Cup, which is officially-sponsored by LG.  Whilst the ICC guidelines allow players to appear in advertisements in their neutral cricket whites or casual clothes, it was Dhoni’s appearance in coloured Day/Night attire which led the ICC to rule that the ads were likely to cause confusion as to whether Sony is a World Cup sponsor.  

This is not a debut appearance for ambush marketing on the cricket field.  At the 2003 World Cup, where Coca-Cola was an official sponsor, Pepsi ran a cheeky campaign with the tagline “there’s nothing official about it”.  Similarly most would recall the Selley’s ads here in Australia ending with the phrase, “proud sponsors of Dave the cricket”.  (This was ‘version two’ of the ad after “proud sponsors of the cricket” was thought to be misleading.)

Event sponsors and promoters have a variety of legal recourses available to protect their interests, including ss 18 and 29 of Schedule 2 to the Competition & Consumer Act (our ‘new’ ss 52 and 53 of the TPA), or a common law action for passing off.  Additionally, legislation has been enacted specifically regulating aerial advertising in Victoria, advertising on the side of buildings visible from major venues in Queensland and specific major events legislation covering the Sydney Olympics and Melbourne Commonwealth Games. 

In the lead up to the 2003 Cricket World Cup, South Africa introduced legislation specifically aimed to combat ambush marketing.  In short, the legislation served to both prohibit marketing or advertising which might lead to a false representation of association with an event and to prohibit brands (even major sponsors) from advertising to achieve a special promotional benefit without prior consent of the event promoters. 

Until we enact similar legislation here in Australia, it is important for event sponsors and promoters to consider protecting their rights through contractual terms.  The ICC’s squad terms provide an example of how an event organiser may more effectively protect sponsors’ rights and retain value in sponsorship opportunities.  The length of time for such restrictions is also an important factor.  In this case, seven days prior to and until the team is out of the World Cup was thought to be appropriate.  In 2003, India threatened to withdraw from the World Cup tournament on the basis that the player requirements in relation to ambush marketing were too onerous. 

In the meantime, clever and innovative brand owners may wish to identify high publicity events for which there are no existing sponsors – in a nod to Trevor Young’s PR Warrior blog, a recent favourite being this quick and salacious move in front of Shane Warne’s Brighton mansion…

About the Author

Samantha McHugh
Samantha McHugh is a solicitor loving everything media, food, fashion and IP, who would like to get to pilates more frequently. With a penchant for mustard-coloured home furnishings and a mean repertoire of desserts, Sam has dreams of one day juggling a successful legal career with a chase for an endless summer around the globe. Sam also enjoys reality TV and online shopping to an extent which is unhealthy. Sam loves writing posts about branding, marketing, celebrities and anything that makes her giggle.
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