INTRODUCTION
With billions spent on world-class sporting infrastructure, like the multi-sport Sardar Vallabhbhai Patel Sports Enclave in the host city Ahmedabad, the Government’s backing of the Indian Olympic Association’s bid for hosting the Games in 2036 renders the Indian legislature particularly vulnerable to inadequacy concerning countering major challenges posed by ambush marketers. It was during the 1984 Summer Olympics in Los Angeles that the term “Ambush Marketing” originated.[1] Sponsorship for the games was secured by Fuji, a Japanese brand. Its US rival Kodak, in its frustration, responded by buying a considerable amount of TV advertisement space. Moreover, it created the impression that it was the official sponsor of the Summer Olympics through advertisements.
EXTANT LEGISLATION
“The ambush marketer does not seek to suggest any connection with the event but gives his brand or other insignia, a larger exposure to the people, attached to the event, without any authorisation of the event organiser.”[2]
The Delhi High Court’s explication deemed it as “opportunistic commercial exploitation of an event.” However, the logical consistency of this perception is questionable because it fails to account for the aggrieved parties’ woes and empowers them to bring about legal action against the ambushers. While it has been established, through broad consensus, that such parasitic tactics are tantamount to unethical behaviour, the illegality of Ambush Marketing is still in dispute owing to the laws governing the same replete with loopholes.[3]
At the moment, specifically designed legislation offering legal protection against such practices in our country is regrettably missing. Only in the case of other intellectual property violations can some relief be provided to the aggrieved parties. The Indian Trade Mark Act of 1999[4] and Copyright Act of 1957[5], along with the law against passing off is the only option at their disposal. Furthermore, the dearth of judgements concerning the subject also poses a serious problem. Making matters worse, these judgements generally afford a discouraging outcome to the afflicted. Even the premier case of ‘National Hockey League v Pepsi Cola Ltd.’ dealing with this practice failed to provide a remedy.[6] The ambush marketing tactics of Pepsi, albeit recognized by the court, could not be penalized due to the lack of adequate legal provisions. In such a scenario, is it preposterous to infer that organizers and sponsors of events held in India are being offered virtually no assurance of a resolution?
STRATEGIES EMPLOYED BY AMBUSHERS
An insight into the strategies expected to be potentially employed by ambushers is pivotal for framing exclusive legislation to rectify this situation.[7] For the sake of simplicity, these may be divided into two types- Direct and Indirect. To illustrate a classic case of direct ambush marketing, let us suppose that a brand, without obtaining requisite authorisation, uses registered trademarks of the sponsoring brand of the Olympic games in an attempt to advertise its services and confuse customers deceptively. Besides maintaining vigilance across the city, the organizing committee can file for trademark infringement under the act. But what happens when unique slogans, phrases, or images unprotected by intellectual property laws are used to mislead people? Or flash mobs and stalls are set up at or near the event to distract the customers?
Today, infringing brands proceed with extreme caution by investing heavily in a team of experts that can discern the legal lacuna and formulate a course of action enabling them to circumvent the violation of the rights of legitimate owners even while capitalizing on the goodwill of the main event.[8] Switching to indirect techniques, these companies can gain recognition and benefit from the campaigns run by the actual sponsors. Some common strategies for indirect ambush marketing efforts are easily identifiable. These include, among other things, the creation of an illusion of a link between the ambush marketer and the event, diverting the audience, grabbing attention from the official sponsors, and steering clear of making any reference to that specific event in advertisements.[9] By indirectly attaching themselves to their competitors’ advertising campaigns, these companies create confusion among the masses.
CASE LAW
In 2003, ICC Development (International) Ltd. fell victim to indirect ambush marketing practices of Arvee Enterprises and Anr. and contested for trademark infringement, but to no avail.[10] ICC Development (International) Ltd. was the organizer of the ICC World Cup 2003 and, as one would have guessed, had a controlling position over all the rights, whether commercial or intellectual property, over this tournament. The company had submitted a registration application in India for “Dazzler” the mascot, logos, and the phrase “ICC Cricket World Cup South Africa 2003.” At the same time, “Philips” ran promotions with catchphrases like “Philips: Diwali Manao World Cup Jao” that appropriated words from the Plaintiff’s registered brand. In response, the company sued for infringement of its trademark. The court held that the claim was to be rejected because Philips did not use any of its registered trademarks and that “World Cup” is a generic term and so free to be used. Needless to say, this judgement effectively rendered the use of the trademark act futile.
REDRESSAL AGAINST PASSING OFF
The Trademarks Act of 1999’s Section 135 is one of the potential remedies for unregistered trademark owners and is based on the idea that no one has the right to pass off their goods as the property of another.[11] However, before redressal, organizers must meet three essential requirements. This includes generating goodwill, demonstrating misrepresentation, and the likelihood of suffering harm. Evidently, in most cases, these requirements are incapable of being proven with ease.[12]
CONCLUSION AND RECOMMENDATIONS
Ambush marketers have been able to benefit unrestrictedly from these limitations of the Indian law at the expense of legitimate event organizers.[13] If they are permitted to keep using their unethical marketing techniques, it will be extremely difficult for organizers to hold events in India as the importance of sponsorships cannot be overemphasized. Why would any rational potential sponsor want to put money into places where they are unable to reap the rewards of a huge investment?
Ambush marketing’s dangers need to be taken more seriously by lawmakers.[14] They must treat it as a distinct IPR violation, making the practice illegal in our country. Certain principles must be incorporated by the legislature deciding to frame laws against this practice.[15] At the most basic level, prohibition on the use of phrases that are closely related to these events. For instance, the following terms concern the ICC World Cup. They would be protected in a way that no one other than the official sponsor should be permitted to use these statements for financial gain.[16] The licensed user may, however, be allowed to do so if the official sponsor has licensed the same. Another requisite would be to give the event planners ownership over the designs, logos, and other copyrights. Lastly, no one may exhibit any misleading advertisements that purport or imply a relationship between the sponsored event and the individual making the remarks.
Author(s) Name: Mehak Chopra (Shri Ram College of Commerce, Delhi University)
References:
[1] Schwarz E C & Hunter J D, Advanced theory and practice in Sport Marketing, (Oxford, UK: Butterworth-Heinemann/ Elsevier), 2008
[2] ICC Development (International) Ltd. v. Arvee Enterprises and Anr
[3] Townley, Stephen, et al. “The Legal and Practical Prevention of Ambush Marketing in Sports.” Psychology & Marketing, vol. 15, no. 4, 1998, pp. 333–48
[4] The Trade Marks Act, 1999
[5] Copyright Act, 1957
[6] NHL v. Pepsi-Cola Can. Ltd. (1995), 56 B.C.A.C. 1
[7] Ironside S, Major events management act 2007, Managing Intellectual Property, (184) (2008) 122.
[8] Anthony Carrillat, François, et al. “Weapons of Mass Intrusion: The Leveraging of Ambush Marketing Strategies.” European Journal of Marketing, vol. 48, no. 1/2, 2014, pp. 314–35.
[9] Gradauskaita Jurga, The advertising appeal of sports and the legal limits of the incorporation of sports in advertising, Entertainment and Sports Law Journal, 8 (1) (2010)
[10] ICC Development (International) Ltd. v. Arvee Enterprises and Anr
[11] The Trade Marks Act, 1999
[12] Chadwick, Simon, and Nicholas Burton. “The Evolving Sophistication of Ambush Marketing: A Typology of Strategies.” Thunderbird International Business Review, vol. 53, no. 6, 2011, pp. 709–19
[13] Miller Nancy A, Ambush marketing and the 2010 Vancouver-Whistler Olympic Games: A prospective view (12 April 2010).
[14] O’Sullivan, Paul, and Patrick Murphy. “Ambush Marketing: The Ethical Issues.” Psychology & Marketing, vol. 15, no. 4, 1998, pp. 349–66.
[15] David & Griffiths Simon, Ambush marketing: Unsporting behaviour or fair play? Entertainment Law Review, 21 (8) (2010) 293-297.
[16] Townley, Stephen, et al. “The Legal and Practical Prevention of Ambush Marketing in Sports.” Psychology & Marketing, vol. 15, no. 4, 1998, pp. 333–48
