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Commercial Question

Sporting events: a brand owner's heaven or hell?

updated on 13 July 2010

Question

Events such as the World Cup can be a brand owner's dream, but how can they be prevented from becoming a nightmare?

Answer

Thirty-two teams and each match viewed by an estimated average of 125 million people and broadcast across 214 countries: what brand owner would not want a piece of the action?

Coca-Cola, Adidas, Budweiser, Sony, Castrol, Honda, Visa, Emirates and McDonalds are just some of the 'official' Fédération Internationale de Football Association (FIFA) World Cup 2010 sponsors. Each has doubtless shelled out a considerable sum (reportedly hundreds of millions) to have its brand plastered over pitch-side, billboard and television advertising and memorabilia. Official sponsorship of such an event is a lucrative, exclusive and expensive club to join. Understandably, FIFA and official sponsors do not want competitors or other companies cashing in on the World Cup for free.

How did other brand owners make the most of World Cup mania?
Nike, one of the largest sportswear brands in the world, has made its mark on the World Cup with its "Write the future" advert, featuring many of the world's top football stars, including Rooney, Ronaldo, Drogba, Ronaldinho and Fabregas. From the amount of airtime that Nike's advertisement has received over the last month, you would be forgiven for thinking that Nike was an official sponsor of the World Cup.

Similarly, Pepsi, one of Coca-Cola's biggest rivals, aired an advert in which some of the sport's top names play football against locals in Africa. You may have noticed a number of other advertisers marketing their products and services in this way over the last couple of months, from stores decked out in England flags to special football-related promotions such as discounts off products "every time that England score a goal" (not much for the retailers to worry about there!).

Can companies that are not official sponsors use FIFA World Cup trade marks and otherwise be 'associated' with the World Cup?
The FIFA official sponsors have exclusive use of the FIFA trade marks (eg, World Cup emblems, logos, terms such as 'FIFA World Cup', 'World Cup 2010', 'World Cup South Africa 2010' and 'Football World Cup) and official association to the World Cup in marketing.

Under the UK Trade marks Act 1994, it is an infringement of a registered trade mark to:

  • use a mark that is identical to a registered mark for goods or services that are identical to those for which the mark is registered;
  • use a mark that is identical or similar to a registered mark for goods or services that are the same as or similar to those for which the mark is registered, where there exists a likelihood of confusion between the two marks; or
  • use a mark that takes unfair advantage of the reputation of a registered mark.

There is also a common law right, known as passing off, that prevents another person from making out that it is in some way associated with a business when it is not.

Similar laws apply across Europe and in most developed countries.

FIFA has strict advertising rules and restrictions in place in relation to its trade marks. To maintain the integrity of the official World Cup trade marks, FIFA polices and enforces its intellectual property vigorously to prevent organised ambush marketers, counterfeiters and unauthorised traders from using it.

Host countries also implement special laws to enforce FIFA's restrictions. The penalties in special South African laws introduced for the World Cup are severe. Associating a trade mark with a World Cup event without FIFA's permission could land you in jail for three years.

FIFA's strict guidelines do permit advertisers and merchandisers to use material relating to football or the host nation in general terms, provided that such material does not use the official World Cup trade marks or otherwise link its products or services to FIFA (eg, by way of ticket promotions).

Who else has made headlines at the World Cup?
Advertisers have attempted to find other, cheaper ways to get their brands in front of the cameras. In a group-stage match between Denmark and Holland, 36 young women in bright orange mini-dresses were repeatedly caught on camera in the crowd during the game. These women were reportedly evicted at half time on the basis that they were part of a marketing stunt for Dutch beer brand Bavaria.

Organised ambush marketing stunts such as this are banned by FIFA and constitute a criminal offence in many parts of the world, including South Africa. Two of the women who allegedly led the group into the stadium were arrested and detained by police, and faced a large fine, although all charges were later dropped. Bavaria beer denied that these women had anything to do with it, but it is not the first time that the company has been linked to such activities. At the last World Cup, hundreds of Dutch fans were forced to watch a game in their underwear after their Bavaria-branded orange lederhosen were confiscated!

FIFA felt that it had to take action to protect the exclusive nature of its official sponsorship programme. Arguably, Bavaria beer received much more publicity than it would have done had FIFA allowed the stunts to go uninterrupted.

The World Cup is over – is that it for another four years?
These issues arise time and time again. With the London 2012 Olympics and the Union of European Football Associations Euro 2012 championship in two years, Wimbledon 2011 next year and the new football season around the corner, brand owners will be looking for other opportunities to harness the marketing power of big sporting events.

The International Olympic Committee has similar restrictions to FIFA in place to protect its trade marks and prevent advertising that creates an association with the Olympics. Following the award of the 2012 Olympics to London, the London Olympic Games and Paralympic Games Act 2006 was passed to implement these restrictions into English law. The new act restricts the use of the words 'games', 'two-thousand and twelve', '2012', and 'twenty twelve' in combination with each other or with words including 'gold', 'silver', 'bronze', 'London' and 'summer' - other than by those authorised to use them. These restrictions will last for six and a half years. As a result, the Olympics has been described as "The event that dare not speak its name" and a strong brand-protection programme is expected to be implemented in the run-up to the games.

Whenever there is a major sporting event, brand owners will always try to make the most of the marketing opportunities - whether this be through promotions, giveaways, memorable advertisements or mini-dresses. The world is watching, but remember, so are the trade mark owners… And with that in mind, all rights in trade marks used in this article are acknowledged!

Jo Alderson is a solicitor in the IP team at Pinsent Masons LLP.