Ambush Marketing: Implications for Trademark Owners

I. Introduction

Do you get confused about which brand is sponsoring your favorite sports event? Have you noticed advertisements that mention other brands during the sports season? Chances are, Ambush Marketing is at play. It means creating an impression that a company is associated with an event without paying for official sponsorship or getting consent from the relevant organization. For example, Pepsi attempted to outdo Coca-Cola, the official sponsor of the Cricket World Cup, 1996, by launching an advertisement declaring, "Nothing official about it."[i]? To add weight to its claim, Pepsi even recruited Sachin Tendulkar and Courtney Walsh, among others, to participate in its campaign. Such campaigns can confuse consumers and harm the official sponsors. In this article, we'll look at Ambush Marketing and its impact on trademark rights.

II. The Ad-Wars: Stealing the Spotlight

Companies can use the Ad-wars strategy to steal the spotlight from official sponsors. This can be done by misleadingly claiming official sponsorship or subtly implying the event in their advertisements. For instance, Jio attempted to steal the spotlight from Vodafone, the season's telecommunications sponsor, during the Mumbai Indians vs. Sunrisers Hyderabad match in 2017. Jio made viewers stand in the shape of the letter "JIO."[ii] Ambushers can also buy advertising time on TV before, during, or after the event and put-up billboards near the venue, give away tickets as contest wins[iii], or and the like. The intention is to bask in the event's 'glow' by implying an association[iv].

III. Impact of Ambush Marketing on Trademark Owners

Ambush Marketing may dilute a brand's reputation, create confusion among consumers and endanger the return on investment made by official sponsors. The owner of a registered trademark has the right to exclusive use of the mark and may take legal action against infringement[v]. The Trademarks Act prohibits the use of a mark if it is likely to cause confusion with another trademark, take unfair advantage of, or be detrimental to the distinctive character of a trademark[vi]. However, the official sponsor or claimant must prove there exists a 'likelihood of confusion' in the minds of the consumers regarding the official sponsorship or license[vii]. This is often difficult to prove because the ambushing party doesn’t use the ambushed party’s mark or goods but creatively attempts to present themselves as the official sponsors.

IV. Strategies

Since there is no specific legislation in India to prevent ambush marketing, brands need to develop a proactive approach. One way could be a strong brand presence through consistent and memorable marketing campaigns. Event organizers can also play a crucial role by preventing the likelihood of confusion among consumers. For instance, some fans were allegedly denied entry to Eden Gardens stadium during the recent IPL 2023 because they were wearing Mohun Bagan jerseys. Kolkata Knight Riders clarified that their sole goal was to prevent the likelihood of confusion among consumers that Mohun Bagan was an IPL affiliate[viii]. Similarly, contracts must contain anti-ambush marketing clauses that can deter non-sponsors from exploiting the event for their gain. If it involves a logo, the ambushed party can also file a suit for copyright infringement and it may even be successful in obtaining relief as in ICC Development v. Evergreen Service Station[ix]. Further as illustrated in the Audi-BMW Ad wars, BMW refused to bog down or ignore Audi’s attempts to steal the spotlight from its marketing campaign and concluded it with a Zepplin declaring, “Game Over.”[x] Official sponsors ought to raise public awareness and take measures to clarify their stance when their full exposure to consumers is blocked by an unauthorized party.

IV. Concluding Remarks

It is imperative to enact a legislation curbing ambush marketing. For this, cue may be taken from jurisdictions across the world that have enacted anti-ambush marketing laws such as South Africa, Australia, England, China, Brazil, New Zealand, and Canada. It is crucial to combat ambush marketing because it can negatively affect official sponsorships, especially for large-scale events. It has the potential to harm brand identity and discourage companies from securing sponsorships in the first place. This is likely to impact sports organizations and the overall economy. Public money cannot be the sole source for hosting such events, and that is where official sponsors come in. That said, the jurisprudence ought to encourage (and not deter) prospective sponsors to trust the organizer and the overall environment for hosting such events

[i] Annushree Bhattacharya, ‘Pepsi does it with a ‘Swag’ this ICC Cricket World Cup as Cola war returns’, BRAND EQUITY.COM, https://brandequity.economictimes.indiatimes.com/news/marketing/pepsi-does-it-with-a-swag-this-icc-cricket-world-cup-as-cola-war-returns/70081442.

[ii] Sayantan Maitra, ‘Reliance Jio steals Vodafone's thunder in IPL 2017 match at Wankhede, Mumbai [PHOTOS]’, IB TIMES, https://www.ibtimes.co.in/reliance-jio-steals-vodafones-thunder-ipl-2017-match-wankhede-mumbai-photos-723037.

[iii] NCAA v. Coors Brewing & Co., 2002 U.S. Dist. LEXIS 21059 (S.D. Ind. October 25, 2002).

[iv] Edward Vassallo, Kristin Blemaster & Patricia Werner, An International Look at Ambush Marketing, 95 TRADEMARK REP. 1338 (2005).

[v] Section 28 of the Trademarks Act, 1999.

[vi] Section 29(8) of the Trademarks Act, 1999.

[vii] ICC Development v. Arvee Enterprises & Anr (2003) 26 PTC 245 (Del).

[viii] PTI, ‘We did not stop Mohun Bagan fans, only ambush marketing was stopped by IPL:Kolkata Knight Riders’, TIMES OF INDIA’ , https://timesofindia.indiatimes.com/articleshow/100421543.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.

[ix]ICC Development v. Evergreen Service Station 2003 (26) PTC 228 (Del).

[x] Rob Schwartz, ‘Audi vs BMW: The War Escalates’, FORBES, https://www.forbes.com/sites/robschwartz/2012/01/29/audi-vs-bmw-the-war-escalates/?sh=12c02e8b6a69.