Ambush marketing is a heterogeneous phenomenon, and practices described by this term are characterized by diversity, both in scope, intensity, form, and content. This does not mean, however, that entrepreneurs have no way of defending themselves against the negative effects of such actions.
There are many definitions of the term parasitic marketing. The most comprehensive one was given by the European Commission. It has been assumed that in a general sense it refers to any marketing activity undertaken by an entity around a property, not being its sponsor, to achieve commercial benefits resulting from evoking associations of association with the given property. Within parasitic marketing, a distinction is made between ambush marketing by association and intrusion ambushing.
Associative marketing is when a business seeks to create the false impression that it is an official sponsor of an event by using elements that are similar to the event’s trademarks, symbols, and slogans protected by intellectual property rights. An example of association marketing is the Pepsi campaign during the World Cup in Korea and Japan (2002). During them, a commercial spot entitled “Tokyo 2002” was repeatedly broadcast (FIFA registered the trademarks “Korea Japan 2002”), showing famous football players playing with the Pepsi logo on their shirts. Associative marketing is used to promote own brand using, among others, celebrities – Usain Bolt, breaking world records in short track running after successful races presented himself in front of cameras holding shoes made by Puma, which was not an official sponsor of Beijing 2008 Olympics.
Invasive marketing, on the other hand, is when an entrepreneur, who is not an official sponsor, does not use the event’s proprietary rights but tries to draw attention to himself in another way by “invading” the sphere identified with it. The most famous cases of invasive marketing are the actions of Nike, which during the 1984 Olympic Games in Los Angeles, whose official sponsor was Converse, built walls near the Olympic stadium exposing its logo and athletes “dressed” by the company. Before the Atlanta Olympics, Nike bought all the advertising space in the Olympic Park, thus establishing itself in the minds of the fans as the main sponsor of the event, while Reebok was.
Asserting your rights
Invasive marketing is usually not subject to legal sanctions. To eliminate it, “internal” actions should be taken, i.e. introduction and enforcement of event regulations. An entrepreneur may defend against the negative effects of parasitic marketing under the Act on Fighting Unfair Competition. The condition is that the entrepreneur acts directly by broadcasting advertisements or using specific slogans. Once the above condition is met, if a specific practice constitutes advertising activities, one may seek the protection of one’s rights under Art. 16 of the Act on Combating Unfair Competition. This provision will apply if the competitor’s advertising is contrary to law, morality, or human dignity or misleads the customer and thus may influence the decision to purchase the product or service. In the case of misleading advertising, the burden of proof rests on the person accused of the act of unfair competition.
Another legal basis useful in protecting against deceptive marketing is Section 10 of the Act. The author of a practice that uses symbols or slogans of both the event itself and its sponsors can be held liable under this provision. Under this provision, we may benefit from evidentiary leniency, as the burden of proving the truthfulness of signs or information placed on goods or their packaging is shifted to the entity accused of the unfair competition act. There are also situations where another entrepreneur uses false or misleading information that is disseminated to gain an advantage or cause damage. However, the mere fact of gaining a benefit or causing damage is not a condition for recognizing the conduct as an act of unfair competition – Art. 14 of the Act. The actions of the infringer must be taken to gain its benefit or cause damage to the entrepreneur about whom the misleading information is disseminated.
Ambush marketing is essentially aimed at obtaining one’s benefits. When the perpetrator is an entrepreneur, he should be aware of the market consequences of his actions. Therefore, the primary task of the plaintiff, which is necessary to establish a violation under Section 14 of the Act, is to show that the author of the deceptive practice uses false or misleading information. However, the most useful provision to combat ambush marketing under the Act on Combating Unfair Competition is the general clause in Article 3.
It is assumed that giving the misleading impression of sponsoring an event, despite not incurring the related costs, constitutes a breach of good practice that infringes the interests of other entrepreneurs – the official sponsors. It is also a violation of good practice to refer to the slogans or campaigns of official sponsors, which is considered parasitic imitation. In such a case, an act of unfair competition under Art. 3 is committed, to gaining an advantage for oneself at the expense of a market rival.
A circumstance mitigating or excluding liability under this provision may be the use of disclaimers, i.e. a statement that the entrepreneur is not an official sponsor of the event. If an act of unfair competition is committed, an entrepreneur whose interest has been infringed may demand that the prohibited activity be discontinued, that its effects be removed, that a single or multiple declarations of appropriate content be made, that the damage is repaired, and that unjustifiably gained profits be handed over.
Industrial Property Law and Copyright Law
To protect yourself against ambush marketing, you can register your trademarks, thus ensuring exclusive economic use of your signs and protecting them against widespread use. It is an infringement of trademark protection to illegally use in the course of trade a sign identical to the registered one concerning identical goods and to use a sign identical or similar to the registered one about identical or similar goods if there is a risk of confusing the public, which includes, in particular, the risk of association with the registered trademark.
It is not necessary to show that there is such a risk when claiming protection for reputable marks. In addition, certain parasitic marketing activities may violate the provisions of the Copyright and Neighboring Rights Act by using creative and third-party marks. Under that Act, authors of fraudulent practices may be criminally liable for distributing a work without permission or illegally recording or reproducing it.
To sum up, the practices used in parasitic marketing are so varied that not all of them can be considered illegal, especially against the background of the current Polish law and since the principle of competition in the field of advertising operates. On the other hand, many regulations provide effective legal protection against such practices.
The article appeared in Think Mice magazine – https://www.thinkmice.pl/news/prawo/2996-sposoby-walki-z-marketingiem-pasozytniczym