Abstract
This chapter will provide, as background for the later chapters, a largely descriptive overview of the definitions and practices of ambush marketing and of the legal bases for protection available to sports organisations and their commercial partners against ambushing. The final section will set the scene for critical analysis of the legitimacy of anti-ambushing laws as undertaken in the later chapters, by briefly but seriously interrogating the question of whether all forms of ‘ambushing’, as marketing efforts by non-sponsors around events is often characterised, are in fact legally and ethically ‘wrong’. This is a crucially important exercise, as the chapters that follow will examine criticisms that have been expressed in recent years regarding the sometimes draconian and excessive protections that international sports organisations have been able to impose on the governments of host nations for major events, in furthering or maintaining the commercial interests of such organisations and of their commercial partners.
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Notes
- 1.
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.
- 2.
Compare, for example, the comprehensive, detailed and extremely useful treatment of the subject by Johnson (2007).
- 3.
McKelvey and Grady 2008, p. 553.
- 4.
Seth 2010, p. 456.
- 5.
Compare the following observation:
‘Ambush marketing is not a legal category nor a well circumscribed marketing practice. It is an expression invented by its victims/detractors. “Guerilla (sic) marketing”, “parasite marketing”, “piggy-back marketing”, “gorilla marketing” and in relation to TV broadcasts and digital means of communication, “viral marketing” are other expressions to describe the same practice. “Ambush” or “guerilla” (sic) have dramatic connotations to warfare and imply morally questionable behaviour. These expressions are not neutral and contribute to the stigmatisation of practices fought by the organisers of large sport events, such as the International Olympic Committee, FIFA and UEFA… There have been many definitions of ambush marketing. These definitions usually lack objectivity and fail to take in consideration the endless variety of the phenomenon’. From Kobel at 4.
- 6.
So called because ‘detractors argue that ambushers are obtaining nourishment from the host event without giving anything in return’—Crompton 2004, p. 1. The IOC began using the term ‘parasite’ rather than ‘ambush’ marketing, but its Marketing Department decided that the word ‘ambush’ ‘actually got the message across more effectively’—from the minutes of the meeting of the IOC’s New Sources of Finance Commission held in Lausanne, 25 June 1993 (at p. 36), as referred to by Barney et al. 2004, p. 376, note 32.
- 7.
From an article entitled ‘The rights stuff’ on the FIFA web site, available online at the time of writing at http://www.fifa.com/aboutfifa/federation/news/newsid=1105906.html.
- 8.
From a blog posting by Andy Sutherden, available online at http://blogs.hillandknowlton.com/hank/2011/11/15/ambush-marketing-keeping-us-all-on-our-toes/.
- 9.
Montagnon, R and du Boulay, E ‘IP and the royal wedding: A marriage of inconvenience?’ From the March 2011 News Brief, available online at the time of writing at http://www.herbertsmith.com/NR/rdonlyres/6754B8FC-5380-4718-96C0-DC4E872A9D92/18238/NewsbriefMARCH1.PDF.
- 10.
Interflora, Inc., Interflora British Unit v Marks and Spencer plc, Flowers Direct Online Ltd C-323/09 (22 September 2011).
- 11.
See the report ‘Interflora sues Marks and Spencer over keywords, 15 October 2010, available online at the time of writing at http://www.theepochtimes.com/n2/content/view/44278/. It was reported in March 2011 that Advocate General Niilo Jääskinen of the European Court of Justice had recommended that some restrictions be placed on the rights of advertisers to use the names of rivals as keywords to generate sponsored links on Internet search engines (Pfanner, E ‘Advertisers in Europe may face limits in use of keywords’, New York Times, 24 March 2011). For interest’s sake, it can be noted that Widmaier and Schechter (in their country report on the United States prepared for the Working Committee of the International Association for the Protection of Intellectual property (AIPPI), Project Q210 (‘The protection of major sports events and associated commercial activities through trademarks and other IPR’; 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/GR210usa.pdf) note that there is currently a disagreement among the U.S. Courts of Appeals as to whether a defendant's use of a trademark as a search engine keyword to trigger the display of sponsored advertisements on the search results page does or does not constitute use in commerce sufficient to expose that defendant to Lanham Act (federal trademark) liability. This issue pertains to all trademarks protected under the Lanham Act and therefore applies also to any marks and designations relating to Major Sporting Events. Briefly stated, the Second Circuit, in 1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d Cir. 2005), has held that keyword use is not use in commerce, and thus not actionable under the Lanham Act, while most courts outside the Second Circuit have found that using a trademark as a keyword to trigger sponsored advertisements does constitute use in commerce. See, e.g., Google, Inc. v. Am.
Blind and Wallpaper Factory, Inc., 2007 WL 1159950, *6 (N.D. Cal. Apr. 18, 2007) (finding that Google's sale of trademarked terms in the AdWords program is a use in commerce for purposes of the Lanham Act); J.G. Wentworth S.S.C. LP v. Settlement Funding LLC, 2007 WL 30115, 85 U.S.P.Q.2d 1780, 1785 (E.D. Pa. 2007) (finding that participating in Google's AdWords program constitutes trademark use).
- 12.
Although LMVH, the French owner of the Luis Vitton brand, had failed in a similar action against Google.
- 13.
Available online at the time of writing at http://www.languagemonitor.com/trendtopper/olympic/.
- 14.
Johnson 2008, p. 24.
- 15.
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.
- 16.
378 US 184 (1964). Heshka is a law professor at Thompson Rivers University in British Columbia—from personal correspondence with the author, December 2011.
- 17.
Duthie 2003, p. 171.
- 18.
Johnson 2007, p. 7.
- 19.
- 20.
For further description of what constitutes ambush marketing, see also Chap. 2 (‘Definition, extent and effects of ambush marketing’) in Scaria 2008, p. 28 et seq. In South Africa, the long awaited Safety at Sports and Recreational Events Act was passed in 2010. While this Act does not contain provisions regarding ambush marketing, the earlier Safety at Sports and Recreational Events Bill, 2005 contained provisions regarding ambush marketing of sports events. Sections 19 and 22 of the Bill provided for safety and security planning for events and security measures, amongst which were contained certain provisions relating to ambush marketing (e.g. regarding a prohibited and restricted item policy in respect of access points, a spectator and vehicle search policy, and the enforcement of an ambush marketing policy within a stadium or venue and its precinct, which is designed to protect, amongst others, the proprietary and commercial interests of an event organizer and an accredited event sponsor). The Bill defined ambush marketing as follows:
‘[A]n intentional act or an attempt on the part of a person which utilizes or attempts to utilize the commercialization, publicity or public interest in an event arranged, organized or sponsored by others to obtain an unauthorized and unpaid for commercial benefit from, or association with, an event, without any official involvement or connection with such event’.
Paragraph 1.1.6 of the City of Johannesburg 2010 FIFA World Cup South Africa By-Laws contained the following definition:
‘“Ambush Marketing” means marketing, promotional, advertising or public relations activity in words, sound or any other form, directly or indirectly relating to the Competition, and which claims or implies an association with the Competition and/or capitalises or is intended to capitalise on an association with, or gains or is intended to gain a promotional benefit from it to the prejudice of any sponsor of, the Competition, but which is undertaken by a person which has not been granted the right to promote an association with the Competition by FIFA and whose aforesaid activity has not been authorised by FIFA’.
- 21.
The version available at the time of writing on the web site of http://www.gamesmonitor.org.uk in respect of the 2012 London Olympics, at p 9 (this document refers to an updated version of the Manual which was scheduled for publication in July 2005, although such updated version (if it exists) is not available online at the time of writing).
- 22.
As quoted in M and 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.
- 23.
Working Committee, Project Q210 (‘The protection of major sports events and associated commercial activities through trademarks and other IPR’; in 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/WG210English.pdf.
- 24.
See Drake and Wells 2008.
- 25.
Palomba, M ‘Is ambush marketing dead?’ Reed Smith Advertising Compliance Team Client Alert No. 10-097 (May 2010)—available online at the time of writing at http://www.advertisingcompliancelaw.com/uploads/file/10-097%20ReACTS%20-%20Is%20ambush%20marketing%20dead.PDF.
- 26.
Simon Chadwick and 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. See also Burton and Chadwick 2009.
- 27.
See Schwab 2006, p. 7; Dean, O ‘Legal aspects of ambush marketing’, published on the web site Legal City, 11 February 2000 [available online at http://www.legalcity.net—last accessed 15 February 2007]; Kelbrick 2008, p. 26.
- 28.
Grady et al. 2010, p. 146.
- 29.
Schwab 2006, p. 7.
- 30.
- 31.
See Storey 2010, p. 46.
- 32.
See the report ‘Paddy to power Tonga to victory?’, 4 September 2007, available online at the time of writing at http://news.bbc.co.uk/2/hi/uk_news/northern_ireland/6977125.stm.
- 33.
Burton and Chadwick 2009, p. 10.
- 34.
See the discussion in Chap. 4 and elsewhere in this book.
- 35.
Grady et al. 2010, p. 145 distinguish between the ‘broad conception’ of ambushing (in essence, creating a perception of association with the event) and a more pejorative form:
‘An alternative conceptualisation of what constitutes ambush marketing reflects a more pejorative view of the practice, in that it is seen not simply as any unpaid association with an event, but specifically as actions whereby companies intentionally seek to create actual perceptions of official sponsorship ties that do not exist. Such actions might be, for example, using notable athletes affiliated with an event in one’s advertising, engaging in congratulatory advertising (ie running advertisements congratulating Olympic medalists), or offering premiums thematically tied to an event. Note that this view of ambush marketing goes further than the broader conceptualisation in that, for an act to be considered an ambush, the ambusher should be intending to create perceptions of official sponsorship ties, or engaging in activities that actually create such perceptions’.
- 36.
Scaria describes ambush marketing, from a theoretical perspective, as referring to ‘a company’s attempt to capitalize on the goodwill, reputation and popularity of a particular event by creating an association with it …’ (Scaria 2008, p. 29)—classic passing off language. See, more generally, the discussion in Sect. 3.3.5 in the text below.
- 37.
Section 3.7 of the ASA’s Sponsorship Code (available on the internet) defines ambush marketing as follows:
‘The attempt of an organization, product or brand to create the impression of being an official sponsor of an event or activity by affiliating itself with that event or activity without having paid the sponsorship rights-fee or being a party to the sponsorship contract’.
- 38.
Article 11.1 of Clause 10 of the ASA Sponsorship Code provides that ‘no organization, other than an official sponsor, may directly or by implication create an impression that its communications relate to a specific event or create an impression that they are an official sponsor of such event’, and Article 11.1.4 of Clause 10 provides that ‘[n]o organization, other than an official sponsor … may launch event-related sales promotions to give the impression of sponsoring such event’. See the article by Schimmel, G and Green, C ‘Ambushed by a ticket?’ Without Prejudice June 2008, p. 17–18.
- 39.
A Johannesburg businessman felt the sting of measures enforced in terms of the new legislation during the tournament at the match between Australia and India on 15 February 2003, when he was evicted from Centurion stadium for drinking Coca-Cola and refusing a request by security personnel to surrender cans of the soft drink (he was, however, subsequently readmitted to the stadium).
- 40.
For more on the long-standing marketing feud between the two cola brands, specifically in respect of the American Super Bowl event, see McKelvey 2006, pp. 114–123.
- 41.
The GCC had bought the sponsorship and television rights to ICC events as part of a seven-year deal at a cost of USD 550 million.
- 42.
See Hartman 2004, p. 417.
- 43.
Act 1 of 2000.
- 44.
See Vassallo et al. 2005, p. 1352.
- 45.
Section 15A(2) of the Merchandise Marks Act, 1941 (as amended in 2002)—see the discussion in Chap. 4 and elsewhere in this book.
- 46.
Mendes 2010, p. 19.
- 47.
Crompton 2004.
- 48.
ICC Document 240-46/330, published August 2006, available online at the time of writing on the website of the ICC at http://www.iccwbo.org/policy/marketing/id8532/index.html.
- 49.
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. See Gannon 2010, p. 69.
- 50.
This last mechanism will not be examined here, but Chap. 7 will include brief discussion of the ambush marketing provisions contained in the host city municipal By-Laws that were in place for the 2010 FIFA World Cup South Africa™.
- 51.
Rule 7.1 of the Olympic Charter (7 July 2007, in force at the time of writing) provides as follows in respect of ‘Rights over the Olympic Games and Olympic Properties’:
‘The Olympic Games are the exclusive property of the IOC which owns all rights and data relating thereto, in particular, and without limitation, all rights relating to their organisation, exploitation, broadcasting, recording, representation, reproduction, access and dissemination in any form and by any means or mechanism whatsoever, whether now existing or developed in the future. The IOC shall determine the conditions of access to and the conditions of any use of data relating to the Olympic Games and to the competitions and sports performances of the Olympic Games’.
The By-Laws to Rule 7 regulate the licensing of use of the Olympic Properties to National Olympic Committees in their respective territories.
- 52.
The August 2009 version of the FIFA Statutes, currently in force at the time of writing.
- 53.
In Chap. 2.
- 54.
Turkey’s Parliament enacted the first Olympic law in the world (on 5 May 1992) guaranteeing the full cost of staging the Games and the government has set aside fixed sources of revenues for facilities.
- 55.
See ‘Marks, set, ambush—associating your brand with the Olympics’, 9 July 2010, available online at the time of writing at http://www.wragge.com/analysis_6124.asp.
- 56.
In order to avoid the negative effects of what is referred to as conflict marketing (i.e. where publicity gained by e.g. an official team sponsor detracts from the publicity derived by official event sponsors); while this practice involves official sponsors and is distinguishable from ambush marketing, its impact can be as damaging to event sponsors.
- 57.
Compare the ICC’s problems in the run-up to the 2003 ICC Cricket World Cup, in respect of individual players’ personal sponsorships (especially sub-continent players). Compare also the problems experienced in the dispute between the ICC and Cricket Australia in the run-up to the 2007 ICC Cricket World Cup in the Caribbean, regarding the position of Cricket Australia’s own exclusive team sponsor, Travelex (see the report of the ruling of the International Cricket Council’s Dispute Resolution Committee in Cricket Australia v ICC Development (International) Ltd, 2007 (World Sports Law Review, 2 (May), SLR 61–75, Sweet and Maxwell).
- 58.
Co-hosted by India, Sri Lanka and Bangladesh.
- 59.
Memo from David Becker, ICC head legal counsel, 26 October 2010 (available online at the time of writing at http://static.icc-cricket.yahoo.net/ugc/documents/DOC_4F4A49058EED67A652B676DB54524966_1293679965894_945.pdf.
- 60.
See Kaur, B ‘Apprehending an ambush: How to defend against ambush marketing’ Brands in the Boardroom 2010 pp. 56–59 at 58 (www.iam-magazine.com)—available online at the time of writing at http://www.iam-magazine.com/issues/Article.ashx?g=a96dceed-1e54-456c-bd75-6a38f819d228.
- 61.
See Becker 2006, pp. 158–159.
- 62.
See the report available online at the time of writing at http://iccworldcupliveupdates.blogspot.com/2011/02/icc-cricket-world-cup-2011-dhoni-warned.html.
- 63.
See the report on the Team USA website, dated 24 September 2010, available online at the time of writing at http://www.teamusa.org/news/2010/09/24/national-governing-body-council-passes-anti-ambush-resolution-with-u-s-olympic-committee/38693.
- 64.
As happened during the 1984 Olympics when Kodak sponsored the ABC television coverage of the event while Fuji was the official event sponsor. Sony managed to be perceived as the official sponsor of the 1991 IRB rugby World Cup through its sponsorship of broadcasts, even though it was not an official sponsor of the event.
- 65.
Burton and Chadwick 2009, p. 11.
- 66.
Notably the UK and Australia—compare Victoria Park Racing v Taylor (1937) C.L.R. 479; Australian Broadcasting Corp v Lenah (2001) 208 C.L.R. 199.
- 67.
On the basis of International News Service v Associated Press 248 US 215, 63 L Ed 211, 39 S Ct 68 (1918); Pittsburgh Athletic Co v KQV Broadcasting Co 24 F Supp 490 (WD Pa 1937). See also Twentieth Century Sporting Club v. Transradio Press Service, 300 N.Y.S. 159 (N.Y. Sup. Ct. 1937); Johnson-Kennedy Radio Corp. v. Chicago Bears Football Club. 97 F.2d 233 (7th Cir. 1938); Mutual Broadcasting System v. Muzak, 30 N.Y.S.2d 419 (Sup. Cot. N.Y. County 1941); Southeastern Broadcasting Co. v. Oil Center Broadcasting Co., 210 S.W.2d 230 (Tex. Civ. App. 1947); Liberty Broadcasting System v. National League Clubs, 1952 Trade Cases (CCH) 67,278 (N.D. Ill. 1952); and Nat’l Exhibition Co. v. Fass, 143 N.Y.S.2d 767 (N.Y. Sup. Ct. 1955). Lewis and Taylor Sport: Law and Practice Cavendish Publishing 2003 at 405, 583 and 679; Johnson, P Ambush Marketing: A Practical Guide to Protecting the Brand of a Sporting Event Sweet and Maxwell, London (2008) at 2–3.
- 68.
Notably Spain, the Netherlands and France—see the discussion in Hewitt 2005, pp. 32, 33.
- 69.
Hewitt supra discusses the failed lobby in England by the Association for the Protection of Copyright in Sports for the recognition of copyright in sports events similar to other types of ‘works’ under the applicable copyright legislation (e.g. literary, artistic and musical works), which was rejected in the 1952 Gregory Report (a report of the Committee on Copyright Protection which led to the Copyright Act of 1965). See also, generally, Becker 2006, pp. 5–7.
- 70.
Judgment of the Grand Chamber (4 October 2011) available online at the time of writing at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008CJ0403:EN:HTML.
- 71.
At par. 98, 99 of the judgment.
- 72.
At par. 100 of the judgment.
- 73.
See Lewis and Taylor 2003, p. 584.
- 74.
Which is why, for example, the official guidelines to brand and content protection (available at the time of writing at http://static.icc-cricket.yahoo.net/ugc/documents/DOC_78EA5B38294E6DA3B05BD9BBEED292E4_1289140599475_38.pdf) distributed by the International Cricket Council in respect of its ICC Cricket World Cup 2011 (co-hosted by India, Bangladesh and Sri Lanka) contains the following:
‘It is important to note that a formal or pre-existing association with any of the fourteen participating national teams or the tournament venues does not permit a team partner or team sponsor any right to use the ICC Cricket World Cup IPR (other than the specific rights such team is authorised by the ICC to license) without the prior authorisation of the ICC’.
- 75.
- 76.
Cloete et al. 2005, p. 179.
- 77.
1996 (4) SA 950 (A).
- 78.
Cloete et al. 2005, p. 179.
- 79.
E.g. Vassallo et al. 2005, p. 1340 refer to a survey that showed that three out of five companies most associated with the 1994 Lillehammer Winter Olympics in Norway were not official sponsors, at a time that official sponsors were paying USD 40 million to be so associated with that event.
- 80.
Note also Scaria’s observation on the practicalities involved (Scaria 2008, p. 30):
‘It is virtually impossible for a sponsor to buy rights to all avenues leading to the public’s awareness of a given sponsorship property. In such situations, all except that which is specifically purchased is for grabs and this is what ambush marketers capitalize on’.
- 81.
Compare the events surrounding the 1991 IRB Rugby World Cup, where Sony was not the event sponsor but was perceived by the public to be the main event sponsor while it was only the sponsor of TV coverage of the event (and had paid much less for these rights than the event sponsors).
- 82.
See the discussion in Sect. 4.4.5 in Chap. 4.
- 83.
Apart from the enforcement of guarantees that an event organizer and rights holder may have provided in respect of the exclusivity of rights licensed to e.g. sponsors. It is debatable (and purely speculative here) whether ambush marketing activities might provide a sponsor party to a commercial agreement regarding an event with an alternative claim against the ambush marketer, relating to such contract. It is, for example, accepted in South African law that ‘[a] delictual [tort] remedy is available to a party to a contract who complains that a third party has intentionally and without lawful justification induced another party to the contract to commit a breach thereof’ (Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) at 202. See also Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 (1) SA 209 (C)). South African courts generally require the defendant’s actions or conduct in interfering with the contractual rights of the plaintiff to be intentional (therefore with the clear intention to interfere with the parties’ contractual rights and cause the plaintiff damage) in order to found liability under this delictual action (Union Government v Ocean Accident and Guarantee Corporation Ltd 1956 (1) SA 577 (A)). Just some examples of specific forms of conduct that may found liability under this delict are the intentional inducement, enticement or instigation of a contracting party to breach the agreement, bribing an employee of a competitor to sell trade secrets, or enticing employees of a competitor to leave its service. The inducement element may, of course, provide some problems to prove in such a scenario. Vassallo et al. 2005, pp. 1344, 1345 note that ambush marketing may lead to liability in terms of the tort of tortuous interference with contractual relations (in the United States). Although this tort has apparently not yet been utilised in this context, the authors refer to the Canadian case of National Hockey League et al. v Pepsi-Cola Canada Ltd 70 B.C.L.R. (2d) 27 (1992), affirmed 59 C.P.R. (3d) 216 (1995), where the possible application of a remedy of this nature was mentioned (although the court held that Pepsi’s conduct did not satisfy the requirements for the tort in light of the official sponsor (Coca-Cola)’s limited contractual rights on the facts).
- 84.
(2003) VII AD (Del) 405.
- 85.
Compare, for example, the old Transfer of Property Act of 1882 in India, which might assist the owners of stadium walls and perimeter boards—see 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).
- 86.
Compare the position in respect of the Ellis Park stadium in Johannesburg. It was reported in June 2008 that the most lucrative stadium naming rights deal to date in South Africa had been concluded (apparently following two years of negotiation) in respect of the historic Ellis Park rugby stadium, which is now known as the Coca-Cola Park stadium. Coca-Cola International had apparently paid GBP 30 million for the naming rights in a four year deal. The deal does not include the 2010 FIFA World Cup South Africa™, as FIFA has prohibited the use of corporate names for stadia during the event (corporate use will be interrupted during the Exclusive Use Period when FIFA regulations require a ‘clean’ stadium free of non-FIFA sponsor advertising and marketing rights in terms of the agreement between FIFA and the South African bid committee, and corporate sponsors will not be compensated by FIFA in this regard)—see the report by Moholoa, R ‘Blow to corporate stadium names’, The Sowetan, 7 March 2007.
- 87.
Clause 14 of the standard Ticket Terms and Conditions for this event, which was held at the Sepang International Circuit, stated that ‘the Ticket Holder shall not engage in any form of Ambush Marketing (Ambush Marketing is an activity by a party which utilizes the publicity value of an event without having any official involvement or connection with the event) and shall not breach or infringe the rights of any sponsors, Suppliers, broadcasters or other parties commercially associated with the event or the venue, nor conduct any unauthorized promotions or other commercial activity’.
- 88.
The International Rugby Board’s ‘draconian’ media accreditation rules for the 2007 IRB Rugby World Cup in France attracted wide-spread criticism from international press freedom groups. It was reported prior to the 2010 FIFA World Cup that FIFA and local South African media were locked in a stand-off over restrictive terms and conditions imposed by FIFA in respect of media accreditation for the event. At issue appeared to be provisions in the accreditation agreement that would bind publications to the same rules that would bind journalists attending matches and official FIFA events as well as a clause providing that behaviour harmful to FIFA or the Local Organising Committee could be punished by summary withdrawal of accreditation (from a report on www.legalbrief.co.za—25 November 2009). For more on media accreditation to major sporting events, see the discussion on the role of the fundamental right to freedom of expression in Chap. 7.
- 89.
As in the old English case of Sports and General Press Agency v Our Dogs Publishing Co. [1917] 2 KB 125—see Hewitt 2005, p. 34.
- 90.
For some South African case law on this, see King’s Car Hire v Wakeling 1970 (4) SA 640 (N); Bok Clothing Manufacturers (Pty) Ltd v Lady Land Ltd 1982 (2) SA 565 (C); Durban’s Water Wonderland (Pty) Ltd v Botha 1999 (1) SA 982 (A).
- 91.
A popular ambush technique in the United States is to promote a sweepstakes in which event tickets are a prize. To prevent this, the National Collegiate Athletic Association (NCAA) issues tickets to its annual basketball tournament games as revocable licenses. Under the terms printed on the back, the ticket may be revoked if it is used as a sweepstakes prize without the NCAA’s permission. The NCAA brought state law breach of contract and unfair competition claims against a company that nonetheless gave away the tickets as part of a promotion, but the parties settled before the merits of this approach could be determined.
- 92.
McKelvey and Grady 2008, p. 572.
- 93.
See Johnson 2007, p. 11. As Johnson points out, this practice was in fact named after an Australian company (Messages on Hold) which pioneered this form of advertising.
- 94.
Vassallo et al. 2005, p. 1341 discuss the argument pursued by the relevant sports event organiser in the matter of NCAA v Coors Brewing Co. 2002 US Dist. LEXIS 21059 (S.D. Ind. October 25, 2002), where Coors had used NCAA Men’s Basketball tournament tickets as a prize in a promotional campaign. The NCAA claimed that this constituted breach of a revocable license in light of the wording on the tickets (the matter was eventually settled). In respect of the 210 FIFA World Cup, see Schimmel, G and Green, C ‘Ambushed by a ticket?’ Without Prejudice June 2008 supra at 17:
‘FIFA has strict processes around the purchase of tickets, so tickets that are resold, or given away in unauthorised competitions, may well be cancelled. This is because their use is against the General Terms and Conditions relating to the ticket sale, which will have been signed by the person purchasing the ticket. The innocent consumer who believes that he or she has won a ticket to a match may well be turned away at the stadium. Hence, the initial advertising for the competition could be regarded as misleading’.
Regulations prohibiting the unauthorised promotion and resale of tickets for the 2010 FIFA World Cup were proclaimed in April 2009.
- 95.
See Vassallo et al. 2005, p. 1355.
- 96.
Compare the successful use of a disclaimer as found by the court in the Canadian case of National Hockey League v Pepsi-Cola Canada (1995) 122 DLR (4th) 412.
- 97.
Michael Payne, marketing director of the International Olympic Committee, describing one of the legs of the IOC’s strategy to protect the Olympic Games from ambush marketing, in Payne 1998. Canadian law professor John Heshka points out that it is noteworthy that the IOC invokes the language of war in defending its intellectual property rights through the use of special ambush ‘hit squads’. Such repetitive use of hyperbolic terms and appropriation of rights which it may not necessarily possess has normalized its heavy-handed approach—from personal correspondence with the author, December 2011.
- 98.
See Rule 51.2 of the Olympic Charter (2010):
‘No form of advertising or other publicity shall be allowed in and above the stadia, venues and other competition areas which are considered as part of the Olympic sites. Commercial installations and advertising signs shall not be allowed in the stadia, venues or other sports grounds’.
- 99.
Payne 2006, pp. 141–143.
- 100.
For more on in-stadium advertising at (mega-)events, see the case study of the 2000 Sydney Olympic Games and of the 1999 FIFA Under-17 World Football Championships in new Zealand in Scherer et al. 2005.
- 101.
As recounted in McKelvey and Grady 2008, p. 567.
- 102.
McKelvey and Grady 2008, p. 565.
- 103.
McKelvey and Grady 2008, p. 565.
- 104.
According to Dalton Odendaal, senior sponsorship lawyer for London 2012, as quoted in an April 2008 BBC report (available online at the time of writing at http://news.bbc.co.uk/2/hi/business/7364391.stm).
- 105.
Article 6(2) of the ‘Olympic and Paralympic Act’, Federal Law No. 310-FZ (approved by the Federation Council on 23 November 2007) provides as follows:
‘During the period of the holding of the Olympic Games and the Paralympic Games, any advertising on sportswear, accessories or sports equipment to be used by athletes or other participants in the Olympic Games and the Paralympic Games shall be permitted only in instances and upon the terms stipulated by the Olympic Charter’.
- 106.
From the document entitled ‘Protecting Sponsors at the London 2012 Olympics’, by solicitor Liz Ellen, as available online at the time of writing on the web site of international law firm Mishcon de Reya at http://www.mishcon.com/assets/managed/docs/downloads/doc_2413/Protecting_Sponsors_at_the_London_2012_Olympics_doc_(2).pdf). See Bye-law 1 to Rule 51 of the Olympic Charter (2010), which provides as follows:
‘No form of publicity or propaganda, commercial or otherwise, may appear on persons, on sportswear, accessories or, more generally, on any article of clothing or equipment whatsoever worn or used by the athletes or other participants in the Olympic Games, except for the identification… of the manufacturer of the article or equipment concerned, provided that such identification shall not be marked conspicuously for advertising purposes’.
- 107.
As referred to by McKelvey and Grady 2008, p. 571.
- 108.
The IOC’s marketing chairman for the event, Gerhard Heiberg, as quoted on the www.GamesBids.com web site (available online at the time of writing at http://www.gamesbids.com/eng/other_news/1216133637.html).
- 109.
McKelvey and Grady 2008, p. 565 recount how brand names of toilets were covered with tape at the curling site for the 2006 winter Olympics in Turin.
- 110.
Schwab 2006, p. 8.
- 111.
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 5—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.
- 112.
Ibid.
- 113.
In Chap. 7.
- 114.
- 115.
The Code is available on the ASA’s web site at http://www.asasa.org.za.
- 116.
See, generally, the provisions of the Code.
- 117.
Referring to the popular nickname of the national football team (and translated, roughly, as ‘our boys’).
- 118.
From a briefing by Ms Lillian Mlambo, ASA Communications Manager, Cape Town, 23 June 2008.
- 119.
From a report available on Marketingweb, 5 June 2008.
- 120.
Such as the Merchandise Marks Act, 1941 (as amended), which is discussed below.
- 121.
See the report ‘Ambush marketing crackdown in South Africa…’, 28 July 2009, available online at the time of writing at http://burtonsportsmgmt.blogspot.com/2009/07/ambush-marketing-crackdown-in-south.html.
- 122.
In November 2009 the ASA rejected a claim in terms of its Advertising Code by SA Rugby against beer maker Windhoek Lager, relating to the use of the (national) colours green and gold in its advertising (and reference to Windhoek Lager as ‘the green and gold beer’). SA Rugby had claimed that Windhoek had attempted to create the impression of an association with the national team, the Springboks, while Castle Lager has been the official sponsor since 1992. The ASA rejected the claim but advised SA Rugby to submit a claim in terms of the ASA Sponsorship Code. It is expected that, in line with the earlier finding in the Bafana Bafana matter, Windhoek’s conduct will probably be found to contravene the Sponsorship Code’s ‘Imitation and Confusion’ provisions.
- 123.
Crow and Hoek 2003, p. 11.
- 124.
In the parody case of New Zealand Olympic and Commonwealth Games Association, Inc v Telecom New Zealand (1996) F.S.R. 757 the New Zealand Olympic Association (NZOA) sought an action against Telecom New Zealand regarding one of its highly publicized advertisements. The advertisement, which was published in several magazines and newspapers, featured the word ‘Ring’ in positions strikingly similar to those of the five rings of the Olympic symbol, in the following manner:
Ring Ring Ring
Ring Ring
[The word ‘ring’ was used as a play on the ringing of a telephone, in light of the advertiser’s product.] Beneath the word arrangement was the slogan, ‘With Telecom mobile, you can take your own phone to the Olympics’. The NZOA alleged that the advertisement amounted to passing off because it quite clearly suggested a falsified association between Telecom and the Olympics. The court, in adjudicating upon the issue of passing off, found that the typical newspaper reader tended to browse advertisements and would not read them in a closely focused way. Accordingly, the advert would simply be mildly amusing and seem like a cartoon or clever device to the reader. Further it was held that it is ‘a long way from brief amusement to an assumption that this play on the Olympic five circles must have been with the authority of the Olympic organization, or through sponsorship of the Olympics’.
- 125.
See the National Hockey League case referred to in note 83 above.
- 126.
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).
- 127.
Act 194 of 1993.
- 128.
Act 98 of 1978.
- 129.
Compare the following description of initiatives in this regard as available on FIFA’s web site (at http://www.fifa.com/aboutfifa/marketing/marketing/rightsprotection/index.html):
‘After its sporadic beginnings in 1994 with 258 cases across 39 countries, the problem [of ambush marketing and abuse of IP] first became a major concern when the 1998 FIFA World Cup ™ was held in France and 773 infringements of registered marks were discovered in 47 countries. Eight years on, 3,300 rights infringements were uncovered in 84 countries in relation to the 2006 FIFA World Cup ™. By contrast, when the 2002 event took place in Japan and Korea, there had been 1,884 cases in 94 countries, and with three and a half years to go until the 2010 FIFA World Cup™, there have already been 127 cases of rights' abuses, 70% of them in the host nation, South Africa. 19 of these incidents related to counterfeit products that have been confiscated by South African customs, thus illustrating the efficiency of FIFA's rights protection programme… FIFA has been implementing its rights protection programme in close collaboration with various authorities—within the host nation and elsewhere—including police forces, customs authorities, patent offices and public prosecutors. More than 150 international specialists help the FIFA rights protection team to register marks and protect them at local level… FIFA’s rights protection programme is founded on national and international mark protection laws and anti-trust laws. The trademarks registered by FIFA bear the ™ insignia to make it easier for users around the globe to recognise that these marks are protected. FIFA has registered a raft of picture and word marks for its many competitions—no easy or cheap undertaking. For the Official Emblem of the 2010 FIFA World Cup ™, a total of 1,808 commercial samples were checked in a range of markets so as to avoid any nasty and costly surprises after the mark's registration… Following months of exchanges between top international legal specialists on intellectual property, it was finally possible to register the definitive design with the relevant patent offices in May 2006—just before the 2006 FIFA World Cup ™ kicked off in Germany. The Official Emblem that was publicly unveiled on 7 July 2006 has since been protected in an unprecedented 153 countries and in several hundred product categories. By comparison, the “laughing faces” emblem of the 2006 FIFA World Cup ™ was protected in 124 nations. Meanwhile, the FIFA World Cup Trophy, the most recognisable sporting trophy in the world, has over 700 mark protection entries in 134 countries’.
- 130.
Compare the protection of the Olympic symbol in terms of the Nairobi Treaty on the Protection of the Olympic Symbol, 1980, which is administered by the World Intellectual Property Organisation (WIPO)—for more on this treaty, see Johnson 2007, p. 99 et seq.
- 131.
- 132.
- 133.
1977 (2) SA 916 (A) at 929. See also Premier Trading Co (Pty) Ltd v Sporttopia (Pty) Ltd 2000 (3) SA 259 (SCA).
- 134.
- 135.
Act 62 of 1963. This Act was replaced by the Trade Marks Act 194 of 1993.
- 136.
1981 (3) SA 1129 (T).
- 137.
At 738B of the Bartlett judgment.
- 138.
At 736E-J of the Bartlett judgment.
- 139.
At 737B-D of the judgment.
- 140.
1977 (2) SA 916 (A).
- 141.
With reference to Brian Boswell Circus (Pty) Ltd and Another v Boswell Wilkie Circus (Pty) Ltd 1985 (4) SA 466 (A).
- 142.
At 739I–740B of the judgment.
- 143.
Ellis et al. 2011, p. 300.
- 144.
See Corbett and van Roy 2010, p. 352.
- 145.
Payne 2006, p. 145.
- 146.
McKelvey and Grady 2008, p. 560.
- 147.
Ibid.
- 148.
Owen Dean, partner of Spoor and Fisher (one of the large intellectual property law firms representing FIFA in South Africa), writing in Dean, O ‘FIFA scores opening goal’ Without Prejudice May 2009 p. 4–5.
- 149.
See the discussion in Sect. 4.4.5 in Chap. 4.
- 150.
It is very interesting to note that, as Johnson observes (Johnson 2007, p. 141, note 97), the Explanatory Memorandum to the amendment Bill which inserted section 9(d) of the Trade Practices Act (see above) expressly stated that passing off would not be available under the common law in the event of a breach of trade practices law. It is unclear why or to what extent a similar consideration should not apply in respect of the Merchandise Marks Act.
- 151.
Federation Internationale de Football Association (FIFA) 2010 FIFA World Cup South Africa FIFA Public Information Sheet (a guide to FIFA’s Official Marks).
- 152.
Gannon 2010, p. 70.
- 153.
Crow and Hoek 2003, p. 11.
- 154.
For an example from the United States, see McKelvey and Grady 2008, pp. 561, 562.
- 155.
Crompton 2004, p. 10.
- 156.
Heshka 2010, p. 37.
- 157.
See the report ‘Harsh fines could backfire on IRB ‘bullies’’, 4 October 2011, available online at the time of writing at http://tvnz.co.nz/rugby-world-cup/harsh-fines-could-backfire-irb-bullies-4441266.
- 158.
McKelvey, S ‘As Games approach, time to reconsider ambush marketing’, 28 January 2010, available online at http://www.sportsbusinessdaily.com/Journal/Issues/2010/01/20100118/Opinion/As-Games-Approach-Time-To-Reconsider-Ambush-Marketing.aspx.
- 159.
With apologies to Jon Heshka’s wife (whom I understand is a fan). For the reader unfamiliar with this term, see some examples at http://www.thestreisandeffect.com/.
- 160.
As per Sachs J in Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International and Another (CCT42/04) [2005] ZACC 7; 2006 (1) SA 144 (CC); 2005 (8) BCLR 743 (CC) (27 May 2005) at par. 104.
- 161.
See Lingling Wei ‘Legal regulation of ambush marketing: Where is the base?’ Paper presented at the 6th Annual European Policy for Intellectual Property Conference, 8–9 September 2011, Brussels—copy available online at http://www.epip.eu/conferences/epip06/papers/Parallel%20Session%20Papers/WEI%20Lingling.pdf.
- 162.
Moshinsky, B ‘Forget Argentina and Brazil—this is the real World Cup-winning team’, 29 May 2006, The Lawyer—available online at the time of writing at http://www.thelawyer.com/forget-argentina-and-brazil-this-is-the-real-world-cup-winning-team/120125.article.
- 163.
See the discussion in Sect. 4.4.5 in Chap. 4.
- 164.
Vassallo et al. 2005, p. 1354 mention this possible risk for event organisers in respect of large corporations.
- 165.
On the web at http://www.copyrightintegrity.com.
- 166.
- 167.
- 168.
In sections 16, 22 and 25, respectively, of the Constitution of the Republic of South Africa, 1996.
- 169.
In the South African context, consider the Independent Communications Authority of SA (or ICASA)’s position paper and regulations on ‘Sports Broadcasting Rights’ of 2003 (Notice 2029, Government Gazette No. 25249, 25 July 2003), specifically par.3 and 4. At the time of writing, ICASA has conducted hearings with a view to the publication of updated sports broadcasting rights regulations [compare the discussion paper in this regard which was published as General Notice 1238 of 2008, Government Gazette No. 31483, 2 October 2008 (‘Review of Sports Broadcasting Rights Regulations—Discussion Document, September 2008’)].
- 170.
See Hewitt 2005, pp. 35, 36.
- 171.
Compare, for example, the finding of the Delhi High Court in India in the matter of ICC Development (International) Ltd v Arvee Enterprises and Philips 2003 (26) P.T.C. 245 (Del.), where Philips had offered ICC Cricket World Cup 2003 tickets in a promotional campaign. The court held that there was no likelihood of confusion that Philips was a sponsor of the event, and dismissed passing off and unfair trading claims. In respect of the practice of ambush marketing, the court held that this practice was distinguishable from passing off, as there is no element of deceit in ambush marketing but merely opportunistic commercial exploitation of an event. The court held that this is not contrary to the public interest, and that as long as an official sponsor’s trade marks are not used, ambush marketing is not illegal and in line with commercial advertising as free speech in terms of the Indian Constitution—see Vassallo et al. 2005, p. 1347.
- 172.
McKelvey and Grady 2008, p. 553.
- 173.
See Frontier Economics 2007, pp. 13, 14.
- 174.
The marketing strategist who was manager of global marketing for American Express in the 1980s.
- 175.
As per Scaria 2008, p. 30.
- 176.
- 177.
Cardinal, M ‘Olympic Brand Ambush Marketing is… (A) a Mortal Sin (B) Good Business Sense (C) None of the Above’, Vancouver Observer, 29 November 2009 (available online at the time of writing at http://www.vancouverobserver.com/politics/commentary/2009/11/29/olympic-brand-ambush-marketing-isa-mortal-sin-b-good-business-sense-c).
- 178.
From comments posted on Skildum-Reid’s sponsorship blog at http://blog.powersponsorship.com.
- 179.
Storch, J ‘It’s an ambush! Or is it?’ Marketing, 17 May 2010—available online at http://www.macleoddixon.com/documents/Storch.pdf.
- 180.
See Seguin and O’Reilly 2008.
- 181.
Ibid. 67.
- 182.
Schmitz 2005, p. 208.
- 183.
Crompton 2004, p. 10.
- 184.
Grady et al. 2010, p. 153.
- 185.
Ellis et al. 2011, p. 300.
- 186.
See also Ellis et al. 2011, p. 306.
- 187.
Cooper Dreyfuss 1990, p. 424.
- 188.
Amis et al. 1999, p. 257.
- 189.
See Shank 1999, Chap. 12.
- 190.
Dick Pound is quite proud of the IOC’s move to involve Nike as official sponsor, even after Nike’s controversial ‘You don’t win silver. You lose gold’ ambush campaign at the 1996 Atlanta Games:
‘We… did our best to convince Nike that it would be better for them to become mainstream and support the efforts of aspiring Olympic athletes, since they did have superb product lines. This paid an unexpected dividend… when, in the middle of the Salt Lake City crisis, the 2000 Games sponsor, Reebok, suddenly withdrew its sponsorship, for reasons unrelated to the crisis. We immediately got through to our Nike contacts and said there was an opportunity for them, if they could act quickly. We put together a full sponsorship deal for Sydney in forty-eight hours, working round the clock, and were able to make it public in the midst of the crisis, thus showing the ongoing value of the Olympics despite the furor. Even the Australians were impressed with this ability to replace one of their sponsors so quickly and effectively. It also saved expensive and time-consuming litigation with Reebok, whose officials were equally stunned by the speed with which they became irrelevant’. (Pound 2006, pp. 162, 163)
Most interesting, for me, from this anecdote is that it appears to show that an open and transparent bidding process for the right to be a top level Olympic sponsor does not always take place….
- 191.
From a report entitled ‘IOC to crack down on Beijing 2008 “ambush marketing”’, 17 January 2008, available at the time of writing on the www.GameBids.com web site at http://www.gamesbids.com/eng/other_news/1200686224.html.
- 192.
From the short article entitled ‘Bush-Whackers’, 21 August 2008 in Marketing Week (available online at the time of writing at http://www.mad.co.uk/Main/Home/Articlex/17d67f5e4e9e42fc9cd8d88de18c2749/'Bush-whackers.html).
- 193.
Ibid.
- 194.
See the discussion in Chap. 7.
- 195.
See, for example, the following depiction of such development:
‘What has emerged through scholarly research, as well as debate among practitioners, is an evolution in our understanding of the concept of ambush marketing, as well as a fleshing out of the ambiguities that surround the practice. From the earliest definitions of ambush marketing as a pejorative term involving “unauthorized” practices has emerged not only an acknowledgment of the considerable vagueness that surrounds the concept but also a conceptual framework of ambush marketing that more accurately reflects the balancing of sponsors’ contractual rights against the rights of non-sponsors to maintain a market presence during an event through legal and competitive business activities’. McKelvey and Grady 2008, p. 554.
- 196.
Ning, C ‘Conceptual and Semantic Analysis in Ambush Marketing Utilizing LEXIMANCER Software Tool’, available online at the time of writing at http://anzmac2010.org/proceedings/pdf/anzmac10Final00022.pdf.
- 197.
Seguin and O’Reilly 2008, p. 62.
- 198.
Ibid. 70.
- 199.
Crompton 2004, p. 10.
- 200.
Day, J ‘FIFA foils Pepsi ambush’, 11 June 2002, The Guardian (available online at the time of writing at http://www.guardian.co.uk/media/2002/jun/11/advertising.marketingandpr).
- 201.
Burton and Chadwick 2009, p. 5.
- 202.
Merchandise Marks Act, 1941, as amended in 2002 prior to South Africa’s hosting of the 2003 ICC Cricket World Cup—see the discussion in Chap. 4 and elsewhere in the book.
- 203.
From the Harvard Business Review Polska, Listopad 2009 (at 122)—available online at the time of writing at http://www.gala-marketlaw.com/pdfs/GALA_Warsaw%2018_09_09.pdf.
- 204.
Storch, J ‘It’s an ambush! Or is it?’ Marketing, 17 May 2010—available online at http://www.macleoddixon.com/documents/Storch.pdf.
- 205.
Burton and Chadwick 2009, pp. 17, 18.
- 206.
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/.
- 207.
Lefton, T ‘McCann-Erickson digs into Olympics niche with its new Q5 group’ Sportsbusiness Journal, 6 May 2002 (see also Barney et al. 2004, p. 394, note 37).
- 208.
Crow and Hoek 2003.
- 209.
Meenaghan 1996.
- 210.
Crow and Hoek 2003, p. 9.
- 211.
Canadian law professor Jon Heshka, from personal correspondence with the author, December 2011.
- 212.
Grady et al. 2010, pp. 150, 151, 153, 154.
- 213.
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 (see also Welsh, J. (2002) ‘In defense of ambush marketing’ Sponsorship Report, 21(11), 1, 4–5).
- 214.
Compare comments posted on Skildum-Reid’s sponsorship blog at http://blog.powersponsorship.com and referred to elsewhere.
- 215.
Welsh, writing on http://welshmktg.com/WMA_ambushmktg.pdf supra.
- 216.
Federation Internationale de Football Association (FIFA) v Executive African Trading CC and Another Case No. 52308/07 North Gauteng High Court, Pretoria—see the discussion in the section on special anti-ambushing laws in South Africa in Sect. 4.4.5 in Chap. 4.
- 217.
From the Respondent’s Heads of Argument in the application (11.3 par. 33–35). I thank Dr. Tim Burrell, counsel for the Respondent, for providing me with the relevant documentation.
- 218.
2003 (26) PTC 245 (Del).
- 219.
The plaintiffs also claimed that they had been using the words ‘World Cup’ since 1975 in the game of cricket and had used it exclusively, therefore the term ‘Cricket World Cup’ is associated with the plaintiffs and that the defendants by making use of the impugned words were guilty of passing off the indicia, marks and identity of the plaintiffs and the World Cup, thereby causing irreparable harm and injury to them. The court held that the word ‘World Cup’ is a generic term; the generic nature of these words can be judged from the fact that they have been used to refer to several other international sporting events (including, for example, the FIFA World Cup). The plaintiffs therefore had no trademark in the said words. The words belong to one genus and such words can neither be brand names nor have any protection by means of a registered trade mark. This last accords with the view of the South African court in FIFA v Bartlett and others 1994 (4) SA 722 (TPD) (discussed in the text above) at 742C that the words ‘world cup’ are simply of such a descriptive character in South Africa that they cannot fulfil the function as a trade mark.
- 220.
Crompton 2004, p. 11.
- 221.
Bischoff et al. 2005, p. 19.
- 222.
Scassa 2011, p. 364.
- 223.
Crompton 2004, p. 3. In fact, as Crompton points out (at 4), the media may also actively encourage ambushing (if not expressly prohibited by its contract with the event organiser) by, for example, aggressively soliciting advertising of event broadcasts by competitor non-official sponsors, because this provides an opportunity for generating greater advertising revenues.
- 224.
Bacalao-Fleury 2011, p. 197.
- 225.
Payne 2006, pp. 126, 127.
- 226.
Ibid. 149.
- 227.
Seguin and O’Reilly 2008.
- 228.
Ibid. 78–79.
- 229.
Tripodi and Sutherland 2000, p. 417.
- 230.
Federation Internationale de Football Association (FIFA) v Executive African Trading CC and Another Case No. 52308/07 North Gauteng High Court, Pretoria—see discussion in Sect. 4.4.5 of Chap. 4.
- 231.
Affidavit by David Murray, who had left FIFA’s employ by the time of the hearing of the case in March 2011.
- 232.
At par. 27.1 of Murray’s affidavit.
- 233.
In par. 54 of Portela’s replying affidavit.
- 234.
Cooper Dreyfuss 1996, p. 145.
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Louw, A.M. (2012). Ambush Marketing of Sports Mega-Events. 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_3
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