Intricacies of ambush marketing around 2013 Afcon

With South Africa coming under the spotlight once more, through hosting the African Cup of Nations (Afcon), many businesses will be looking to exploit the perfect opportunity of exposing their brands through the game of millions.

Some businesses have paid through their nose to capture this opportunity while others will be looking for loopholes, free rides if you like. Major corporations like Standard Bank, Orange, Samsung, Adidas and Pepsi have secured official sponsorship of the 2013 Afcon at steep fees. Together with event organisers they will not tolerate free riding.

In the past there have been many cases of free riding around major sporting events through a practice called ambush marketing. But loopholes are disappearing fast as event organisers pressure host countries to install stricter regulations to render these events protected terrains.

Lauren Frizelle, an Associate in ENS’ IP Department “Most businesses know that the use of an event’s branding (without official agreements) is an absolute no-no; but they do still like to create a link or at least an impression of a link with a big event. They try to do this subtly, without actually using the event’s branding. This conduct is sometimes referred to as ambush marketing by intrusion.”

The 2013 Afcon tournament was declared a ‘protected event’ in terms of the Merchandise Marks Act by Trade and Industry Minister, Rob Davies.  The implication is that companies that are not an official sponsor can in no way use the event to promote their own brand, and may be subject harsh action if they do.

Frizelle says this means that the severe ambush marketing restrictions that characterised the 2010 FIFA World Cup will also apply to the Afcon tournament. “In essence, ambush marketing occurs when a business tries to get mileage out of an event that it hasn’t sponsored. The most obvious way for a business to do this is to use the event’s branding – the name, the logo, the strapline – in relation to its own product. This is, of course, illegal.”

Many will remember the brave ventures of no frills airliner, Kulula, during the 2010 FIFA World Cup. Kulula thought that it had devised a way around the regulations through commercials that made indirect reference to the event. This included a tag line saying Kulula was the ‘Unofficial National Carrier of the You-Know-What’. The company had put into the mix stylized pictures of the Cape Town stadium, soccer balls, vuvuzelas, a soccer player, and the South African flag. FIFA was able to  muscle Kulula into stopping that campaign.

Frizelle notes that in 2010 the authorities also used municipal legislation to introduce certain practical measures aimed at enforcing the ambush marketing prohibitions. These included defining exclusion zones around stadiums and on roads leading to stadiums.

Frizelle says “It is likely that the organisers of the event (Afcon) will have trade mark registrations for the event’s branding covering a wide range of goods and services, so any unauthorised use will amount to trade mark infringement. In addition, the event’s branding will in all likelihood be well known, with the result that consumers seeing it used in relation to the business’s product will wrongly assume that the business is a sponsor of the event, or that there is at least some commercial relationship.  So there will be passing off, which is an offence under the Trade Practices Act.”

Frizelle notes that the business’s conduct may also contravene the ambush marketing provisions of the Advertising Standards Authority (ASA) Code. “Furthermore, it is possible that certain aspects of the event’s branding such as the official logo will be declared prohibited marks under the Merchandise Marks Act, in which case it becomes an offence to use them without authority – for the 2010 FIFA World Cup a whole host of words, phrases and images were declared prohibited marks, including the official World Cup logo, and terms like ‘World Cup 2010’, ‘South Africa 2010’ and ‘SA 2010’.

Frizelle notes that pressure for South Africa to tighten regulations around major sporting events was significantly added the 2003 Cricket World Cup. The country was pressured by sponsors to put in place mechanisms to stop ambush marketing. Section 15A was added to the Merchandise Marks Act.  This controversial section states that in the case of a ‘protected event’, it is an offence for a business that is not an official sponsor of that event to ‘abuse’ the trademarks and branding of the event. The business will be guilty of doing this if it associates its own brand or business with that of the event, or if its brand even alludes to the event, in a way in which the business derives publicity or promotional benefit.

“Section 15A is very broad and could conceivably cover all manner of things: a business arranging for an aircraft to fly over a stadium with a banner advertising its business; a radio station setting up a broadcast unit outside a stadium on match day; a business handing out t-shirts featuring its brand to people entering the stadium (in the hope that the t-shirts will be shown on TV),” says Frizelle

“What is clear, however, is that businesses should always be very careful before trying anything that might be construed as ambush marketing.. As always, if you’re hoping to leverage this event, make sure you take advice first.”

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