With just over a month to the 2022 Commonwealth Games in Birmingham, advertising agencies, along with local and global businesses, will be thinking of innovative ways to increase their global exposure through associating with the Commonwealth Games.
Whilst the hosting of this sporting spectacle gives rise to many marketing opportunities, it is important to ensure your marketing campaigns do not fall foul of the numerous UK Laws concerning ambush marketing.
What is “Ambush Marketing”?
Ambush marketing has made headlines over the years at many “big ticket” events, often through exuberant and innovative ploys designed to unduly create an association between a company and an event, athlete or sports team; without having to bear the associated costs of an official sponsorship or endorsement.
To protect against ambush marketing the Commonwealth Games Federation (“CGF”) have put in place measures to address creative and opportunistic forms of ambush marketing, ranging from traditional forms of Intellectual Property (“IP”) protection (passing off, trade mark infringement, copyright infringement), Advertising Codes and CPRs, ticket terms and conditions, and specific event legislation. In particular, the CGF own no less than 104 trade marks and are likely to rely upon the Birmingham Commonwealth Games Act 2020 and The Birmingham Commonwealth Games (Advertising and Trading) Regulations 2021.
Main types of Ambush Marketing
Ambush marketing typically takes one of two forms:
- Ambush marketing by association
This occurs when brands seek to associate themselves with an event, team, or athlete, without authorisation. These activities aim to mislead the public into thinking the ambusher is somehow connected in an official capacity.
- Ambush marketing by intrusion
This involves the ambusher generating exposure by targeting the audience attending a sporting venue, and through gaining a wide audience through TV broadcasting. Common activities include supplying free products to attendees of events, purchasing advertising space at the event venue etc.
What should I do if I receive a cease and desist letter?
Navigating around the rules of ambush marketing, which encompasses trade mark law, is far from straightforward.
If you receive a cease and desist letter raising allegations of trade mark infringement/ambush marketing, it is essential to treat this mater seriously and act quickly to gain expert legal advice.
Tips for advertisers and brand owners marketing with a CWG theme
Before running an advertisement campaign which seeks to gain an association with the Commonwealth Games, it is important to be cautious and seek legal advice.
Key questions to consider:
- Will the proposed marketing use any trade marks owned by CGF? If so, there is an infringement risk.
- Does the marketing campaign comply with applicable laws such as The Birmingham Commonwealth Games (Advertising and Trading) Regulations 2021?
- Have you considered the Birmingham Commonwealth Games Act 2020?
Practical Suggestions: Five do’s and don’ts to consider for non-sponsors
- DON’T use any official trade marks
- DON’T underestimate the potential adverse legal and reputational consequences of ambush marketing
- DON’T use risky themes (e.g. Birmingham + Games)
- DON’T re-post official content
- DON’T use tickets for promotional purposes
- DO seek specialist legal advice before running marketing or PR activity
- DO gain legal advice if you are seeking to create an association with the Commonwealth Games.
- DO consider whether you need an anti-ambush marketing policy, which also covers social media
- DO consider using generic language in your advertising
- DO gain the relevant consents when using athletes in your advertising campaigns
Written By Lucy Marlow, Senior Associate at JMW Solicitors