Intellectual Property

10 Sep 2010

Ambush Marketing for RWC 2011 – Lining up to Lose...

In around twelve months New Zealand will host the Rugby World Cup 2011 - easily the biggest sporting event to ever be held in New Zealand. With any major event comes the spectre of ambush marketing - where unauthorised third parties seek to 'ambush' the official sponsors by obtaining financial benefit from the event without paying to be official sponsors.

New Zealand's Major Events Management Act 2007 (MEMA) provides a comprehensive legislative framework to combat ambush marketing. MEMA contains prohibitions on vicinity marketing (through the creation of clean zones around stadia and key transport routes) and forbids unauthorised association with the event, such as use of combinations of event words and emblems (eg WORLD CUP, 2011, RUGBY etc). Although it has not yet been tested in the courts, an objective review of the legislation suggests that MEMA is relatively robust by international standards - leaving event organisers and sponsors with little to grumble about.

However, the FIFA 2010 World Cup in South Africa provided some valuable lessons as to what New Zealand can expect in terms of ambush marketing, and throws up perhaps the one weakness of not just MEMA, but ambush marketing legislation generally ...

... what happens when the whole purpose of the ambush marketing campaign is to get caught?

Dutch brewery Bavaria has reduced getting caught to an art form. Back in 2006 at the FIFA World Cup in Germany, Bavaria distributed bright orange Bavaria-branded lederhosen to Dutch football supporters, despite the fact it was not an official sponsor. This measure was easily cut off at the stadium gates - a large group of drunk Dutch men in orange trousers were never going to slip through un-noticed. The result? The supporters removed their lederhosen, watched the game in their underwear and created a media sensation. One nil to Bavaria.

2010 arrived and the World Cup moved to South Africa. It probably took Bavaria's marketing team tens of seconds to work out that the only thing likely to attract more international television coverage than a lot of Dutch men in their underwear would be a lot of Dutch women in their underwear. Perhaps 30 blonde models.

So Bavaria set out to do it again - this time armed with 30 blonde models in orange mini-dresses. The actual branding on the dresses was tiny and immaterial. However, the pretty models managed to linger in front of officials long enough to get caught. Two managed to get arrested and have their passports temporarily seized. Cue a second international media storm.

So what is Bavaria's real brand? What do we associate them with? The truth is, it's not a word, or a logo, or even the colour orange - it's getting caught, in as spectacular and racy manner as possible.

Lessons For The Rugby World Cup 2011

Fortunately Holland is not playing in the Rugby World Cup. However, the example highlights the problems with all ambush marketing legislation - it assumes that ambushers would prefer not to get caught. If the business is based abroad with no significant business in New Zealand, the threat of an order for damages or a fine from a court in the bottom corner of the world that may not even have jurisdiction over it is unlikely to outweigh the benefit of getting its brand all over the international media and virally popular social media for years to come.

What can be done? As always, it’s about self-help and relationships. Sponsors and event organisers need to be working with the media to prevent the ambushers from getting the press coverage they desire. The ability to act quickly and to be flexible with the response (including knowing when to do nothing at all) will probably be the single factor that separates successful sponsors and event organisers from those that end up being the victims of ambush marketing. Sponsors also need to ensure their legal teams are working closely with their PR teams - sometimes damage control or even a sponsor’s own racy spin is more important than asserting legal rights.

Authors

Earl Gray

Earl Gray

Partner - Intellectual Property

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John Shackleton

John Shackleton

Partner - Dispute Resolution

DDI: +64 4 924 3540

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Tracey Walker

Tracey Walker

Special Counsel - Dispute Resolution

DDI: +64 9 977 5088

Mobile: +64 21 273 6241

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Richard Watts

Richard Watts

Partner - Intellectual Property

DDI: +64 9 977 5182

Mobile: +64 21 895 931

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Claire Foggo

Claire Foggo

Senior Associate - Intellectual Property

DDI: +64 9 977 5314

Mobile: +64 21 582 674

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