07.06.17

OFF TO THE RACES!

Danielle Stiebel Johnson
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OFF TO THE RACES!

With the countdown to the JN Racers Grand Prix having begun, spectators across the world eagerly await to watch the best athletes showcase their talents at the National Stadium, in particular what may very well be Usain Bolt’s final race in Jamaica. At iconic events such as this, it is not only the spectators who will be watching with bated breath. Every associated sponsor and/or partner of the JN Racers Grand Prix as well as those who missed such sponsorship and marketing collaborations will be eye-bawling the many opportunities via social media, television broadcast or otherwise to capture the attention of thousands of viewers on this day.

It is a fact that the marketing appeal of national and international sporting events has and continues to encourage corporate giants across the world to utilize these events to their advantage where new and potential consumers are in a happy attentive space. Why we wonder? The answer is simple. The association with such feelings of pride, joy, excitement and excellence stimulates and encourages consumers to connect with the brand that left them with these feelings.

Some argue such opportunities for association should be a paid opportunity and not merely an “ambushed association” while others feel making the best out of a marketing opportunity is the key to extraordinary marketing. However it may be viewed, the fact is the “ambushed association” is one of many tactics used worldwide by non-sponsors attempting to associate themselves with iconic events of this nature.

The act of ambush has been described as ‘parasitic marketing’, although those engaged in it would characterize and justify it as ‘clever marketing’. Basically, a company or firm claims an association with an event which it does not have, and - perhaps more importantly - for which it has not paid a penny. In such a case, sponsors do not get value for the considerable sums that they have expended on the particular sponsorship. Event sponsorship has become a multi-million dollar industry worldwide for which sports sponsorship represents some 88% of the total in value. With such investments the need to ensure that sponsors receive their maximum leverage is paramount. The challenge, therefore, involves a balancing act of protecting the investments of the event sponsors while allowing the non sponsor entities reasonable freedom to advertise and market.

From a legal point of view, ambush marketing is still being considered under the purview of domestic trade mark or unfair competition laws in most countries. It continues to be a controversial and infrequently litigated issue and there is no internationally recognized law in this area. For instance, in the US, where ambush marketing is commonplace, this practice does not habitually attract trade mark infringement cases. Any such claim is unlikely to be successful under trade mark infringement rights, as ambushers create and use their own marks and names. The more likely legal recourse would be under, false advertising, the tort of passing-off or breach of contract. In the UK, there is no specific legislation for ambush marketing claims. The protection may be exercised through the British Code of Advertising and Sales Promotion against advertisements that do not comply with the Code. Similarly, in Jamaica there are no specific laws for ambush marketing claims and so entities are left to rely on domestic trade mark and/or unfair competition laws where applicable.

The absence of legislation has lead to the development of event specific legislation to tackle such acts of ambush. Examples of this include the Sydney 2000 (Indicia and images) Protection Act (1996) and the Olympic Arrangement Act in Australia, the Olympic Symbol (Protection) Act (1995) in the UK and of course the ICC Cricket World Act of 2007 (“ Sunset Legislation”) in the Caribbean to facilitate the ICC Cricket World Cup in 2007(“ICC CWC”). These specialized statutes were designed to secure the legal framework for each event, including provisions for the control of venues, the control of certain aspects of security and the protection of event sponsors intellectual property. The Sunset Legislation in particular provided for both civil and criminal sanctions against acts of ambush. This legislation however was only implemented for the ICC CWC and thus expired in June 2007.

This short term and reactive approach demands reconsideration. The continued acts of ambush coupled with the continued prominence of sporting events in the Caribbean forces us to evaluate the effectiveness of event specific legislation. The problem is that event-specific legislation fails to prevent ambushers from using generic words such as “Be Extraordinary” in suggesting an association with the relevant event. In instances where legislators have attempted to restrict the use of generic words the result has been a widespread prohibition which stifles freedom of expression and the marketers’ creative appetite. A prime example of this was during the course of the Vancouver Winter Olympics (2010) where the Canadian Government imposed restrictions on the use of generic words, such as 'winter', 'gold', 'silver', 'bronze', 'sponsor', 'Vancouver', 'Whistler', '2010', 'tenth', 'medals', 'games', etc. This resulted in widespread criticism invoking breaches of freedom of speech by many corporate entities.

The act of ambush continues to turn the global competitive legal landscape on its head. The challenge of balancing the preservation of the commercial attraction of official sponsorship on the one hand and the marketers’ ability to creatively brand and advertise continues without what seems to be an effective workable solution. The reality is we must prepare for the growth of the ambush as the demand for sporting events grows in the Caribbean. Let not these acts of ambush be a deterrent to the possible growth in sponsorship equity to come!

Danielle Stiebel Johnson is an Associate at Myers, Fletcher & Gordon and is a member of the firm's Commercial Department. Danielle may be contacted via danielle.stiebel@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.