‘Jumping on the Brand Wagon’: ‘Association Rights’ and the Thematic Space of the Sports Mega-Event

Louw, Andre M.

doi:10.1007/978-90-6704-864-4_8

‘Jumping on the Brand Wagon’: ‘Association Rights’ and the Thematic Space of the Sports Mega-Event

Andre M. Louw²

Chapter
First Online: 01 January 2012

1773 Accesses
1 Citations

Part of the book series: ASSER International Sports Law Series ((ASSER))

Abstract

This chapter will conclude the critical examination of the legal implications of special anti-ambushing laws by focusing on what is currently the pinnacle of international legal developments in respect of special event commercial rights protection, namely the relatively new legal creature that has come to be known as the ‘association right’ to an event. It will critically examine a number of aspects of these very substantial and controversial new pseudo-intellectual property rights, which require closer scrutiny and serious consideration in terms of fundamental legal principles. These include the issue of the legitimacy of using the mechanism of public power (in the form of legislation) to protect narrow, private commercial interests to events; the questions of what such laws are aimed at protecting and what they in fact seek to outlaw; and the considerable costs of such special laws in the greater scheme of the public interest in the staging of sports mega-events.

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Notes

1.
Marketing guru Kim Skildum-Reid, writing on her marketing blog in ‘Why ambush marketing legislation will never work (and what will)’, posted 5 August 2009—available online at the time of writing at http://blog.powersponsorship.com/index.php/2009/08/why-ambush-marketing-legislation-will-never-work/.
2.
Scottish economist Adam Smith (1723–1790).
3.
Madow 1993.
4.
Scassa 2011, p. 363.
5.
Ellis et al. 2011, p. 302.
6.
From the UK Department of Culture, Media And Sport’s consultation document on Regulations on Advertising Activity and Trading Around London 2012, March 2011 (in Section 10: Human Rights Assessment, at 93)—available online at the time of writing at http://www.culture.gov.uk/images/publications/ConDoc_Regulations_on_Advertising_and_Trading_London_2012-section9-10.pdf.
7.
Grady et al. 2010, p. 149.
8.
Ibid. pp. 149, 150.
9.
Portela, as quoted in Gannon 2010, p. 70.
10.
See the short article entitled ‘Ambush marketing legislation: Contravention or constitutional?’, 21 April 2010, available online at the time of writing at http://www.biz-community.com/Article/196/147/46893.html.
11.
Kobel 2007, p. 57 (with reference to Baade R ‘The economic impact of mega-sporting events’ in Andreff and Szymanski 2006, p. 177 et seq.).
12.
Longdin 2009, p. 730.
13.
Ibid. p. 742.
14.
Corbett and Van Roy 2010, p. 339.
15.
Corbett and Van Roy 2010, p. 358.
16.
Scassa 2011, p. 359.
17.
Malfas et al. 2004, p. 216 (the study on the Toronto bid, as referred to, by Eitzen 1996).
18.
See the report by Schulz-Herzenberg 2010
19.
See, for example, Scassa 2011, p. 358.
20.
See Sect. 4.4.5 of Chap. 4.
21.
See Ng, C W ‘The irrational lightness of trade marks’, in Bently et al. 2008, p. 224.
22.
Spinello and Bottis 2009, p. 100.
23.
Ibid. p. 101.
24.
Dogan and Lemley 2005, pp. 463, 466.
25.
Spinello and Bottis 2009, p. 103.
26.
Bone 2006, p. 4.
27.
Shwetashree Majumder and Harsimran Kalra ‘The ambush marketing debate’, on the web site Managing Intellectual Property, 1 September 2010 (available online at the time of writing at http://www.managingip.com/Article/2665113/The-ambush-marketing-debate.html?ArticleId=2665113&p=2).
28.
Lemley and McKenna 2010, p. 413.
29.
Ibid. p. 426 n 52.
30.
Ibid. pp. 427,428.
31.
Ibid.
32.
Ibid. p. 428.
33.
Schechter 1927. For a useful exposition of the development of the dilution doctrine, see Bone 2008.
34.
See the discussion in Sect. 5.2.2 in Chap. 5.
35.
Compare the litigation in the US District Court for the District of Columbia in Federation Internationale de Football Association v. Nike, Inc. 285 F. Supp. 2d 64 (2003 U.S. Dist.), relating to FIFA’s Women’s World Cup USA in 2003.
36.
Schedule 4, par. 1(1) of the Act.
37.
Schedule 4, par. 1(2).
38.
Public Act 35 of 2007, discussed in Sect. 4.4.5 of Chap. 4.
39.
In Article 2.
40.
In Article 9.
41.
Ellis et al. 2011, p. 301.
42.
Federal Law No. 310-FZ (approved by the Federation Council on 23 November 2007)—see Sect. 4.4.8 in Chap. 4.
43.
In fairness, it should be noted here that some are of the view that trademark law has moved away from its traditional consumer protection rationale. Catherine Ng argues, rather convincingly, that developments in both the use of trademarks and in trademark laws have served to sideline the traditional requirement of consumer confusion as to the source of goods or services. These developments include the role of company law (i.e. modern corporate structures are often opaque and corporate management unknown to the public, which serves to ‘alienate’ the source of trademarked goods or services), the law’s acceptance of trademark licensing (which, by definition, permits co-existence of multiple sources for one trademark) and franchising. She observes the following in arguing for a reassessment of the rationales for trademark law and a re-rationalisation of the boundaries for protection:
‘Without a secure consumer protection rationale which presumes that consumer demand is trained more on the desirability of the goods than the desirability of their marks, the rationale [of trademark law] for advancing efficient distribution of economic resources… needs to be reconsidered. Where a mark is desired by and its goods incidental to the consumer, the consumer’s economic votes may favour promoting the marks more than producing the goods which fulfil material needs.’ See Ng, C W ‘The irrational lightness of trade marks’, in Bently et al. 2008, pp. 223–237.
44.
Lemley and McKenna 2010, p. 414.
45.
The London Organising Committee of the Olympic Games and Paralympic Games Limited v. H&S Media Ltd Case No. D2010-0415 (the Administrative Panel decision dated 29 April 2010)—report available online at the time of writing at http://www.wipo.int/amc/en/domains/decisions/text/2010/d2010-0415.html.
46.
Lemley and McKenna 2010, pp. 438–439.
47.
Sir Robin Jacob in ‘Trade Marks and the Olympic Games through the Years’ [2001] European Intellectual Property Review 1 at 2 (as quoted by Kelbrick 2008, p. 327).
48.
Ibid. at 3.
49.
See Kobel 2007, pp. 7–8.
50.
Pelanda, B L ‘Ambush marketing: Dissecting the discourse’, undated 2011 paper available online at the time of writing at http://works.bepress.com/brian_pelanda/.
51.
USOC v. Nabisco, Inc., Case No. C 00 3086 (N.D. Cal., Aug. 25, 2000).
52.
Federation Internationale de Football Association (FIFA) & Others v Bartlett & Others 1994 (4) SA 722 (TPD)—see the discussion in Sect. 3.3.5 in Chap. 3.
53.
McKelvey and Grady 2008, p. 576.
54.
See Wood, Z; Hoek, J and Mossaidis, C ‘Ambush marketing: A re-definition and research agenda’, undated paper available online at the time of writing at http://smib.vuw.ac.nz:8081/WWW/ANZMAC2004/CDsite/papers/Wood1.PDF.
55.
Kobel 2007, pp. 8, 9.
56.
See the research referred to in Seguin and O’Reilly 2008, p. 77.
57.
Skildum-Reid 2007, pp. 31, 32.
58.
Schmitz 2005, p. 207.
59.
Séguin et al. 2008, pp. 99–101—as quoted in Grady et al. 2010.
60.
Phillips 2006.
61.
Ng, C W ‘The irrational lightness of trade marks’, in Bently et al. 2008, p. 232.
62.
E.g. in the UK’s Trade Marks Act, 1994.
63.
Paul Alan Levy ‘Is “ambush marketing” a form of trademark infringement?’, 29 December 2009, on Public Citizen’s Consumer Law & Policy Blog, available online at the time of writing at http://pubcit.typepad.com/clpblog/2009/12/is-ambush-marketing-a-form-of-trademark-infringement.html.
64.
Dogan and Lemley 2005, pp. 471, 472.
65.
See the discussion in Chap. 5.
66.
Hylton, J G ‘The over-protection of intellectual property rights in sport’ (Marquette University Law School/National Sports Law Insititute)—undated paper available online at the time of writing at http://shiac.com/files/arablexsportiva-presentations/004003.pdf.
67.
Ellis et al. 2011, p. 302.
68.
The DCMS Impact Assessment document at 5—available online at http://www.legislation.gov.uk/ukdsi/2011/9780111515969/pdfs/ukdsifia_9780111515969_en.pdf.
69.
Ellis et al. 2011, p. 302.
70.
DCMS Impact Assessment document supra at 7.
71.
Stop the Olympic Prison v. United States Olympic Comm., 489 F. Supp. 1112, 1120 (S.D.N.Y. 1980); United States Olympic Comm. v. Union Sport Apparel, 220 U.S.P.Q. 526 (E.D.Va. 1983); United States Olympic Comm. v. Int’l Fed’n of Body Builders, 219 U.S.P.Q. 353 (D.D.C. 1982); and United States Olympic Comm. v. David Shoe Co., Inc., 835 F.2d 880 (6th Cir. 1987)—see Schmitz 2005, p. 204 n 12.
72.
Savage, J ‘Officials ready for Rugby World Cup ambush marketing’ New Zealand Herald, 8 September 2011—available online at http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10750200.
73.
Hincks J in Premier-Pabst Corp. v. Elm City Brewing Co. 9 F.Supp. 754 (1935) at 757.
74.
Scassa 2011, p. 359.
75.
Mishawaka Rubber & Woollen Manufacturing Co. v S SKresge Co. (1942) 13 US 203, at 205:
‘The protection of trade-marks is the law's recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trademark is a merchandising short-cut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same—to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained; the trademark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress.’
76.
(1918) 248 US 215.
77.
Cooper Dreyfuss 1996, p. 143.
78.
San Francisco Arts & Athletics, Inc. v. USOC, 483 U. S. 522 (1987) p. 541.
79.
Smith 1776, p. 138.
80.
See Spinello and Bottis 2009, p. 150 et seq.; Tan 2008, p. 928 et seq.; Wilf 1999, p. 24 et seq.
81.
From an address presented by Professor David Vaver, Reuters professor of Intellectual Property and Information Technology Law, Oxford University, at the Victoria University of Wellington, 30 August 2000—available online at the time of writing at http://kirra.austlii.edu.au/nz/journals/VUWLawRw/2001/2.html.
82.
Gordon 1992, p. 167.
83.
Kratzke 1991, p. 223.
84.
See Lemley 1999, p. 1694 n 33.
85.
Cooper Dreyfuss 1996, p. 144.
86.
Burrell and Gangjee 2010, p. 7.
87.
Meenaghan 1994.
88.
Ibid. p. 79.
89.
Corbett and Van Roy 2010, p. 338.
90.
Those provisions are contained in sections 18–20 of the Act.
91.
Section 22(b)(i) of the Act.
92.
From an undated draft letter by the Dutch government addressed to the president of FIFA, confirming the terms of Government Guarantee No. 6 (‘Protection and Exploitation of Commercial Rights’) in respect of the Low Countries bid for the 2017 FIFA Confederations Cup/2018 FIFA World Cup and/or the 2021 FIFA Confederations Cup/2022 FIFA World Cup—available online at the time of writing on the web site http://www.transparencyinsport.org/The_documents_that_FIFA_does_not_want_fans_to_read/PDF-documents/(6)Protection-and-Exploitation-of-Commercial-Rights.pdf An extract from this document is reproduced at the end of this book as Appendix A.
93.
ICC Development (International) Ltd. v Ever Green Service Station & Another 2003 IIAD Delhi 707, 102 (2003) DLT 723 (from par. 2 of the judgment).
94.
Price, M E ‘On Seizing the Olympic Platform’, in Price and Dayan 2008, pp. 86–114.
95.
Ibid. p. 89.
96.
As defined by Cambridge Dictionaries Online, at http://dictionary.cambridge.org.
97.
Definition of ‘publicity’ as per Dictionary.com.
98.
Louw 2007.
99.
E.g., in South African law, see Commissioners of Inland Revenue v Muller & Co.’s Margarine (Ltd) 1901 AC 217 at 224; Neethling 2008, p. 99 et seq.
100.
Wim Alberts, as quoted in the short article entitled ‘Ambush marketing legislation: Contravention or constitutional?’, 21 April 2010, available online at the time of writing at http://www.biz-community.com/Article/196/147/46893.html.
101.
See Meenaghan 1991.
102.
Price, M E ‘On Seizing the Olympic Platform’, in Price and Dayan 2008, p. 90.
103.
Kobel agrees, observing that ‘by multiplying references to an event, ambush marketing is actually contributing to its publicity, popularity and fame’—Kobel 2007, p. 8.
104.
Madow 1993.
105.
Ibid.
106.
See Kobel 2007, p. 7.
107.
Cooper Dreyfuss 1996, p. 124.
108.
Roche 2000, p. 163.
109.
Dayan and Katz 1992, as referred to in Roche 2000, p. 164.
110.
Roche 2000, p. 164.
111.
Tan 2008, pp. 933,934.
112.
See Schlossberg 1996, p. 176.
113.
‘Ambush marketing: War minus the shooting’, The Economist, 16 February 2006, available online at the time of writing at http://www.economist.com/node/5536128.
114.
Madow 1993.
115.
Scassa 2011, pp. 365, 366.
116.
Johnson 2007, p. 2, 3.
117.
[2007] UKHL 21.
118.
Johnson 2007, p. 3.
119.
Ellis et al. 2011, p. 300.
120.
Grady et al. 2010, p. 148.
121.
See http://welshmktg.com/WMA_thematic_spaces.pdf.
122.
From Welsh, J ‘Ambush Marketing: What it Is; What it Isn’t’, available online at the time of writing on the web site of Welsh Marketing Associates at http://welshmktg.com/WMA_ambushmktg.pdf.
123.
Ibid.
124.
Ibid.
125.
As the court observed in the famous American ‘publicity right’ case of Haelan Laboratories, Inc v Topps Chewing Gum, Inc 202 F.2d 866 (2d Cir. 1953)—see Tan 2008, p. 930.
126.
Schedule 4, par. 1(1) of the Act—see the discussion in Sect. 4.4.3 in Chap. 4.
127.
Johnson 2007, pp. 129, 130.
128.
McKelvey and Grady 2008, p. 578.
129.
Found in Schedule 4, par. 8.
130.
Schedule 4, par. 7.
131.
Schedule 4, par. 1(2)(a); Johnson 2007, p. 130.
132.
Johnson 130.
133.
Schedule 4, par. 2(1).
134.
Burrell and Gangjee 2010, p. 19.
135.
See Chaps. 3 and 5.
136.
Lingling Wei ‘Ambush marketing: Where is the base?’—paper presented at the European Policy for Intellectual Property association’s 6th Annual Conference, September 2011, Brussels, Belgium (copy available online at the time of writing at http://www.epip.eu/conferences/epip06/papers/Parallel%20Session%20Papers/WEI%20Lingling.pdf).
137.
Article 5(2) of Directive 89/104.
138.
Adidas-Salomon AG v Fitnessworld Trading Ltd [2004] E.T.M.R. 10.
139.
Wei (note 136).
140.
Ibid.
141.
Stephen King’s Under the Dome Hodder and Stoughton (2009).
142.
Carvajal, D ‘Can’t tell the sponsors without a scorecard’ International Herald Tribune 31 May 2006 (as quoted in McKelvey and Grady 2008, p. 574).
143.
Scassa 2011, p. 362.
144.
An issue I have referred to in the earlier chapters and will briefly revisit in Chap. 10, in respect of recent developments regarding the recognition of a ‘sports event organiser’s right’.
145.
Scassa 2011, p. 365.
146.
Pelanda, B L ‘Ambush marketing: Dissecting the discourse’, undated 2011 paper available online at the time of writing at http://works.bepress.com/brian_pelanda/.
147.
From Welsh, J ‘Ambush Marketing: What it Is; What it Isn’t’, available online at the time of writing on the web site of Welsh Marketing Associates at http://welshmktg.com/WMA_ambushmktg.pdf.
148.
Scaria 2008, p. 16.
149.
From a posting titled ‘Protecting corporate greed’, 19 June 2007, on the No Right Turn blogspot (available online at the time of writing at http://norightturn.blogspot.com/2007/06/protecting-corporate-greed.html).
150.
As quoted in ‘Ambush marketing and the law: Protecting sponsors or harming small business?’ 7 June 2011, available online at the time of writing at http://internationalbusinessblog.conversisglobal.com/2011/06/07/ambush-marketing-and-the-law-protecting-sponsors-or-harming-small-business/.
151.
From a posting by Saif, S on the Management Punditz web site—available online at the time of writing at http://management-punditz.blogspot.com/2010/06/you-can-buy-marketing-space-but-not.html.
152.
FIFA’s Gregor Lentze, as quoted in ‘Ambush marketing: War minus the shooting’, The Economist, 16 February 2006, available online at the time of writing at http://www.economist.com/node/5536128.
153.
L'Oréal SA v Bellure NV (C-487/07) [2009] ETMR 55 (ECJ).
154.
Burrell and Gangjee 2010, p. 4.
155.
See also Scassa 2011.
156.
Schwab 2006.
157.
Pelanda, B L ‘Ambush marketing: Dissecting the discourse’, undated 2011 paper available online at the time of writing at http://works.bepress.com/brian_pelanda/.
158.
Frontier Economics 2007, par. 4.3.3.
159.
Dean-Wales, C and Dean, O, in an undated piece entitled ‘Ambush marketing: Virtue or vice?’, posted on the web site of South African brand advisors Scarab Origination, available online at the time of writing at http://www.scarabsa.com/news_ambush_marketing.htm.
160.
It was observed that due to all the chaos leading up to the 2010 Delhi Commonwealth Games many companies were very dubious and wary about letting their brand be associated with the Games. After the Games had been successfully launched, many companies were ‘jumping on the band-wagon and … practicing ambush marketing, with the sneaky entry of non-sponsor brands into the Games Village … being evident and pervasive’—see the short report available online at the time of writing at http://kozla.com/commonwealth-games-being-taken-over-by-ambush-marketing/224964.
161.
Cooper Dreyfuss 1996, p. 124.
162.
Mallard, T ‘Close watch kept on ambush marketing’ The New Zealand Herald, 30 April 2007.
163.
McKelvey and Grady 2008, p. 578.
164.
Kim Skildum-Reid, writing on her marketing blog in ‘Why ambush marketing legislation will never work (and what will)’, posted 5 August 2009—available online at the time of writing at http://blog.powersponsorship.com/index.php/2009/08/why-ambush-marketing-legislation-will-never-work/.
165.
Ellis et al. 2011, pp. 301, 302.
166.
Ibid. p. 302.
167.
M&G Media Ltd v 2010 FIFA World Cup South Africa Organising Committee Ltd South Gauteng High Court Case No. 09/51422 (unreported at the time of writing) at par. 124.
168.
See Sect. 4.4.1 in Chap. 4.
169.
See the short piece by Christian Sylt, writing on the website of Front Row Marketing Services (16 June 2010)—available online at the time of writing at http://www.frontrow-marketing.com/news-detail.aspx?id=142.
170.
See Schwab 2006, p. 8.
171.
Marcus 2010, p. 31.
172.
Ibid.
173.
Bennett, T ‘Ambush marketing and Super Bowl XLV’, 31 January 2011—available online at the time of writing at http://ipandentertainmentlaw.wordpress.com/2011/01/31/ambush-marketing-and-super-bowl-xlv/.
174.
See Wood, Z; Hoek, J and Mossaidis, C ‘Ambush marketing: A re-definition and research agenda’, undated paper available online at the time of writing at http://smib.vuw.ac.nz:8081/WWW/ANZMAC2004/CDsite/papers/Wood1.PDF:
‘‘[P]urchase of media time and space that is legitimately offered for sale does not breach any statute, and competitive promotions characterise most trading environments, thus it is difficult to see why this should be acceptable in one arena and yet deemed unethical in another. It is even more difficult to see how the mere presence of competitive promotions could support an application for a “cease and desist” injunction.’
175.
See the Resolution adopted by the committee calling on the Board of Directors of INTA to issue guidelines regarding ambush marketing legislation, dated 10 November 2010, available on the INTA web site at the time of writing at http://www.inta.org/Advocacy/Pages/AmbushMarketingLegislation.aspx.
176.
Ibid.
177.
It is worth noting that this chilling effect, in fact, to an extent deliberately forms part of event organisers’ legal strategy to protect their commercial rights to events:
‘Organisers of sport events usually make all-round [trade mark] registrations in all possible classes. That practice not only covers the main trademarks of the event organiser but a large number of expressions referring one way or another to the event, including words that are part of the public domain. The purpose is to prevent association with the event in general. The threat of litigation, justified or not, is considered to have a dissuasive effect on a large number of corporations which otherwise would take advantage of the event to make promotions and probably do not have the means to enter into long and costly legal battles.’ See Kobel 2007, 54.
178.
Available online at the time of writing at http://www.uefa.com/uefaeuro2012/news/newsid=1612831.html.
179.
Par. 1.1.6 of the definitions section of the By-laws. For further discussion of the FIFA 2010 host city by-laws, see Chap. 7.
180.
From guidelines published by the Working Committee, Project Q210 (‘The protection of major sports events and associated commercial activities through trademarks and other IPR’; in a call for country reports compiled for purposes of a draft resolution to be submitted to the AIPPI Exco meeting in Buenos Aires, October 2009), at 3 – available online at the time of writing at https://www.aippi.org/download/commitees/210/WG210English.pdf.
Reference is made to Article 5 of the First European Trademark Directive (89/104/EEC of the Council, of 21 December 1988), which provides as follows:
‘The registered trade mark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade:
1. a.
  any sign which is identical with the trademark in relation to goods or services which are identical with those for which the trademark is registered;
2. b.
  any sign where, because of its identity with, or similarity to, the trademark and the identity or similarity of the goods or services covered by the trademark and the sign, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association between the sign and the trademark.
3. 2.
  Any Member State may also provide that the proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade any sign which is identical with, or similar to, the trade mark in relation to goods or services which are not similar to those for which the trade mark is registered, where the latter has a reputation in the Member State and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.
4. 3.
  The following, inter alia, may be prohibited under paragraphs 1 and 2:
  1. a.
    affixing the sign to the goods or to the packaging thereof;
  2. b.
    offering the goods, or putting them on the market or stocking them for these purposes under that sign, or offering or supplying services thereunder;
  3. c.
    importing or exporting the goods under the sign;
  4. d.
    using the sign on business papers and in advertising.
5. 4.
  Where, under the law of the Member State, the use of a sign under the conditions referred to in 1 (b) or 2 could not be prohibited before the date on which the provisions necessary to comply with this Directive entered into force in the Member State concerned, the rights conferred by the trade mark may not be relied on to prevent the continued use of the sign.
6. 5.
  Paragraphs 1 to 4 shall not affect provisions in any Member State relating to the protection against the use of a sign other than for the purposes of distinguishing goods or services, where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark’.
181.
New Zealand Olympic and Commonwealth Games Association, Inc v Telecom New Zealand (1996) F.S.R. 757.
182.
Marcus 2010, p. 36.
183.
Hussey, G and Snaith, T ‘Marketing With the London 2012 Olympic Games (or Not Associating With a Sporting Event to be Held in the UK Next Year)’, January 2011, available online at the time of writing at http://www.bnai.com/MarketingLondon2012Olympics/default.aspx.
184.
In the preamble to the 2010 FIFA World Cup South Africa By-laws as published by the eThekwini Municipality for the host city of Durban.
185.
See Burrell, T ‘FIFA’s money grab a blatant foul’, Daily News, 12 April 2010.
186.
Provided that the arrangement with any non-employee production crew/commentators contains appropriate copyright assignments (in terms of s 21(1)(e) of the South African Copyright Act 98 of 1978, for example), the broadcaster will normally be the first owner of the copyright in the broadcast (and accordingly the rights holder in respect of broadcasting of the live event footage and of highlights or clips). The event owner could obtain an assignment of the copyright arising from the broadcaster’s production of match footage (which would be contained in the broadcasting rights contract), in return for the granting of a limited license to broadcast the event footage (See Lewis and Taylor 2007, p. 683). Such an assignment of copyright is the norm in broadcast rights license agreements, and copyright normally subsists in the relevant sports federation.
187.
2003 (26) P.T.C. 245 (Del.).
188.
Vassallo et al. 2005, p. 1347.
189.
See discussion in Sect. 4.4.4 of Chap. 4.
190.
At par. 11.1 of FIFA’s heads of argument in the Metcash matter.
191.
See Merchandise Marks Act section 15A(3).
192.
From the European Sponsorship Association’s Position Statement on Ambush Marketing, 14 October 2005.
193.
Scaria 2008, p. 118.
194.
Kobel 2007, p. 50.
195.
See the short report available online at the time of writing at http://www.andhranews.net/India/2011/Lucknow-restaurateur-promotes-World-Cup-themed-1749.htm.
196.
As quoted in M&G Media Ltd v 2010 FIFA World Cup South Africa Organising Committee Ltd South Gauteng High Court Case No. 09/51422 (unreported at the time of writing) at par. 108 note 42.
197.
According to the Free Online Dictionary at http://www.thefreedictionary.com/affiliation.
198.
Simon Chadwick & Nicholas Burton ‘Ambushed’ in The Wall Street Journal, 25 January 2010—available online at the time of writing at http://online.wsj.com/article/SB10001424052970204731804574391102699362862.html#articleTabs%3Dcomments.
199.
See the section that follows in the text.
200.
During the previous FIFA World Cup in Germany in 2006, a similar episode occurred when approximately a thousand male fans who were clothed in orange lederhosen—also, reportedly, supplied by Bavaria—were asked to strip out of the outfits or leave the stadium during a Netherlands/Ghana match. A number of the fans reportedly stayed to watch the match in their underwear.
201.
The women were apparently charged with engaging in ‘unauthorised commercial activities inside an exclusion zone’ and ‘enter[ing] into a designated area while in unauthorized possession of a commercial object’.
202.
From a report in Afrikaans newspaper Beeld, 18 June 2010.
203.
As per McGechan J in New Zealand Olympics and Commonwealth Games Association v Telecom New Zealand Ltd (1996) T.C.L.R. 167 at pp. 172, 173.
204.
Haman and Marriott 2010, p. 76.
205.
See the blog by Victor Ozols on Black Book, 22 June 2010, available online at the time of writing at http://www.blackbookmag.com/article/drink-bavaria-the-new-official-beer-of-the-2010-fifa-world-cup/19949.
206.
Savage, J ‘Officials ready for Rugby World Cup ambush marketing’ New Zealand Herald, 8 September 2011—available online at http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10750200.
207.
See Miller, Mark J ‘Rugby World Cup goes after strip bar for ambush marketing, posted 5 October 2011 at http://www.brandchannel.com/home/post/2011/10/05/Rugby-World-Cup-Strip-Bar-Ambush-Marketing.aspx.
208.
From a posting (‘How the World Cup ambushed itself’, 18 June 2010) on Kim Skildum-Reid’s blog at http://blog.powersponsorship.com.
209.
Shwetashree Majumder and Harsimran Kalra (writing in ‘The ambush marketing debate’, on the web site Managing Intellectual Property, 1 September 2010—available online at the time of writing at http://www.managingip.com/Article/2665113/The-ambush-marketing-debate.html?ArticleId = 2665113&p = 2) refer to the Bavaria stunt as an example of cases of ambushing by means of the use of trade dress, colours and other forms of association (i.e. less blatant forms of ambushing, which are harder to combat in terms of traditional IP laws)).
210.
From a comment posted by Skildum-Reid to an article by Chadwick, S and Burton, N ‘Ambushed’ in The Wall Street Journal, 25 January 2010—available online at the time of writing at http://online.wsj.com/article/SB10001424052970204731804574391102699362862.html#articleTabs%3Dcomments.
211.
Seguin, B ‘“Sponsorship in the trenches”: Case study evidence of its legitimate place in the marketing mix’ The Sport Journal—available online at http://www.thesportjournal.org/article/sponsorship-trenches-case-study-evidence-its-legitimate-place-promotional-mix.
212.
A survey conducted by the Chief Marketing Officer (CMO) Council (a six-month qualitative and quantitative research campaign, ‘Doing Away With Foul Play in Sports Marketing’, aimed at sensitising sports sponsors and franchises to trademark trespassing, property rights violations and online scams, frauds and infringements) with the assistance of MarkMonitor. The CMO Council surveyed more than 180 senior-level sports marketers across relevant industries for an assessment of how brands are safeguarding themselves and whether those measures are effective. The study also drew from interviews with executives at top leagues and corporate sponsors.
213.
Gannon 2010, p. 69.
214.
See, generally, Johnson 2008, and the discussion in Chap. 4 .
215.
Bollier 2005, at p. 135.
216.
Boldrin and Levine 2008, p. 89.
217.
In its Position Statement on Ambush Marketing, 14 October 2005.
218.
With specific reference to the proviso contained in s 15A(1)(b). Compare the following requirement for the declaration of a ‘major event’ in terms of s 7(4) of New Zealand’s Major Events Management Act 2007:
1. ‘(4)
  Before making a recommendation [to the Governor-General to declare an event as a major event], the Economic Development Minister must take into account whether the event will—
2. (a)
  attract a large number of international participants or spectators and therefore generate significant tourism opportunities for New Zealand;
3. (b)
  significantly raise New Zealand’s international profile;
4. (c)
  require a high level of professional management and coordination;
5. (d)
  attract significant sponsorship and international media coverage;
6. (e)
  attract large numbers of New Zealanders as participants or spectators;
7. (f)
  offer substantial sporting, cultural, social, economic, or other benefits for New Zealand or New Zealanders
219.
Merchandise Marks Act section 15A(1)(b).
220.
Key Facts: Government Preparations for the 2010 FIFA World Cup South Africa ^™ .
221.
From a report entitled ‘Zakumi, Proudly South African?’ on The Budapest Report, 3 February 2010.
222.
Schulz-Herzenberg 2010.
223.
Frontier Economics 2007, pp. 20, 21.
224.
Kobel 2007, p. 41.
225.
From the UK Department of Culture, Media And Sport’s consultation document on Regulations on Advertising Activity and Trading Around London 2012 March 2011 at 6—available online at the time of writing at http://www.culture.gov.uk/images/publications/ConDoc_Regulations_on_Advertising_and_Trading_London_2012-section1-7.pdf.
226.
Ibid. p. 15.
227.
Carter 1990, p. 760.
228.
Section 15A(1)(b) of the Merchandise Marks Act, 1941, as referred to elsewhere.
229.
Eichhorn and Sahm 2010, p. 38.
230.
Ibid. p. 40.
231.
Andrew Jennings, writing in Schulz-Herzenberg 2010, p. 91.
232.
From “Tea for the Tillerman” (Cat Stevens Tea for the Tillerman © 1970, A&M/Island Records).
233.
See the country report for Switzerland submitted to the AIPPI Working Committee, Project Q210 (‘The protection of major sports events and associated commercial activities through trademarks and other IPR’; in response to a call for reports compiled for purposes of a draft resolution to be submitted to the AIPPI Exco meeting in Buenos Aires, October 2009)—available online at the time of writing at https://www.aippi.org/download/commitees/210/GR210switzerland.pdf.
234.
Kobel observed the following regarding the relevant country reporters’ views in respect of the sufficiency of anti-ambush marketing protection in Switzerland (Kobel 2007, p. 54):
‘The Swiss Reporters believe that unfair competition protection is sufficient to deal with ambush marketing practices. They also think that small and medium size enterprises cannot play the same game as big enterprises and therefore are de facto excluded from bidding. They should therefore be able to make reference to the event for economic advantage.’
235.
During the playing of the 2010 football World Cup event there appeared to be a growing feeling of disillusionment and even anger at FIFA amongst South Africans. A Cape Town artist was reported as doing a brisk trade in ‘Fick Fufa’ t-shirts as a non-profit venture. Local satirical news site Hayibo.com was also selling a range of t-shirts that lampooned FIFA’s copyright and other IP rights to phrases and other things, with the logo ‘FEEFA 2.010 WHIRLED CUP SOWTH AFRIKA’—from a report by Raborife, M ‘Fick Fufa!”, Mail & Guardian, 18–24 June 2010.
236.
Kobel 2007, p. 9.
237.
Burrell and Gangjee 2010, p. 9.
238.
The organisation’s web site (at http://www.inta.org) describes it as follows:
‘The International Trademark Association (INTA) is a not-for-profit membership association dedicated to the support and advancement of trademarks and related intellectual property as elements of fair and effective commerce. The Association was founded in 1878 by 17 merchants and manufacturers who saw a need for an organization “to protect and promote the rights of trademark owners, to secure useful legislation and to give aid and encouragement to all efforts for the advancement and observance of trademark rights.” Today, 5,700 trademark owners, professionals and academics from more than 190 countries make INTA a powerful network of powerful brands. Members of INTA find true value in the Association’s global trademark research, policy development, and education and training.’
239.
AIPPI Resolution on Question Q210: ‘The protection of major sports events and associated commercial activities through Trade Marks and other IPR’, adopted at the AIPPI Executive Committee meeting in Buenos Aires, 14 October 2009—English version available online at the time of writing at https://www.aippi.org/download/commitees/210/RS210English.pdf.
240.
Marcus 2010, p. 34.
241.
Pelanda, B L ‘Ambush marketing: Dissecting the discourse’, undated 2011 paper available online at the time of writing at http://works.bepress.com/brian_pelanda/.

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Louw, A.M. (2012). ‘Jumping on the Brand Wagon’: ‘Association Rights’ and the Thematic Space of the Sports Mega-Event. In: Ambush Marketing & the Mega-Event Monopoly. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-864-4_8

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