Firstly, it is important to highlight the concept of Ambush Marketing. It is an opportunistic and unauthorized strategy of a given publicity, especially at events and places with agreements for official and exclusive sponsorship. This type of action searches unduly taking advantage through an advertising invasion at certain places and the media.
Our country has no specific legislation to deal with the practice of Ambush Marketing. However, the following regulatory laws are used, to say, Industrial Property Law (Law No. 9.279/1996), Pelé Law (Law No. 9.615/1998), the Olympics Law – Olympic Act (Law No. 12.035/2009.), Overall Law of the World Cup (Law No. 12.663/11), Nairobi Treaty (Decree No. 90.129/1984), the Copyright Law (Law No. 9.610/98), Civil Code (Law No. 10.406/2002), Consumer Protection Code (Law No. 8.078/1990) and Brazilian Advertising Self-Regulation Code of the Brazilian Advertising Self-Regulation Council.
According to the Industrial Property Law – Law No. 9279 of 1996, the LPI, it is Ambush Marketing is considered as a crime. According to the provision of article 195, item IV of the respective Law, it is considered as an unfair competition the use of alien expressions or signs of advertising, or its respective imitation, causing confusion between the products or establishments. The penalty for this crime is three months to one year in prison or fine.1
Also, it lies in the Consumer Protection Code – Law No. 8078 of 1990, the protection against misleading and abusive advertising, according to its Article 6, item IV. 2 Furthermore, the Article 37 of the respective Law prohibits the misleading advertising that has information or communication that misleads the consumer into error, a type of practice punishable by imprisonment of three months to one year and a fine.3
The Brazilian Advertising Self-Regulation Code of the Brazilian Advertising Self-Regulation Council, in its article 31, condemns the undue and illegitimate advertising revenues resulting from the “free ride” or “ambush” through invasion of the editorial or commercial space of a communication media.4
This way, it needs some clarification on what the undue and illegitimate incomes would be. These incomes are used through ruse trick, seeking to deceive the viewer/consumer, which are accomplished by the lack of an agreement between the Parties and without prior agreement of the responsible media.
The article 50 of the Brazilian Advertising Self-Regulation Code of the Brazilian Advertising Self-Regulation Council provides about the punishments for cases of Ambush Marketing, within which one can find warning, advertising change recommendation or correction, disclosure of the CONAR position itself, relating to the advertiser, to the agency and to the media.1
It is worth mentioning that, in the case of Ambush Marketing, the sporting events are the most affected ones. This is so true that, the Nairobi Treaty that entered into force by Decree No. 90.129 of 19842 determined the invalidation of trademark registration which carried the Olympic symbols, except for records before the Treaty effectiveness, marks used previously this effectiveness and when the symbol is used only for informational purposes.
The Nairobi Treaty was welcomed by Pelé Law – Law No. 9615 of 1998, 3 which had also determined the registration banning and use of symbols and marks made up by the whole or part of the Olympic symbol.
The Industrial Property Law expressly prohibits the registration of trademarks using the name, symbol and award related to a sporting event, except where this use is authorized by the competent authority, according to article 124, item XIII of the respective law. 4 This way, in its Article 189, this same law determines the use of a trademark as a crime without the holder’s authorization.5
Now, the Copyright Law – Law No. 9.610 of 19981 protects the representative characters of sporting events, whose use is permitted only with permission of the International Olympics Committee – IOC or local committee.
Additionally, the Law of the Olympics – Law No. 12.035 of 2009, the Olympic Act, expressly prohibits the commercial use or not of any symbols, signs, mottos, emblems, names and hymns related to the 2016 Olympic Games, including abbreviations and variations in any language. As an example, it is important to mention that the National League of Taekwondo has already been notified by the IOC for using the Olympic Games symbol on their website.
The 2006 World Cup held in Germany was the scene of several Ambush Marketing practices. For example, before the match between Netherlands and Ivory Coast, Bravaria, a Dutch brewery, had distributed to the fans several orange overalls, which is the color that represents the Netherlands. However, its competitor, Budweiser, was the event’s official sponsor and recognized by the red color. The International Federation of Football – FIFA had prohibited fans from wearing these overalls, who watched the game wearing only their underwear, a reaction that ended up generating spontaneous and enough media to make the action a success. The same company repeated the practice at the 2010 World Cup held in South Africa, and this time, hiring models dressed in orange dresses, which were taken from the stadium on charges of promoting the Dutch beer; two of them were arrested, a FIFA action that turned the advertising action into a phenomenon.
Also in the 2006 World Cup, the Brazilian football player Ronaldinho Gaúcho, one of the stars of the team, came on the pitch wearing a Nike headband, mark that is his official sponsor. However, FIFA determined him to remove or replace the band, since Adidas was the official sponsor of the event. After this episode, one of the largest sports marketing consultancies in the sports world conducted a survey of spectators to answer what would be the official sponsor of the event. The vast majority responded Nike.
On the same way, at the 2010 World Cup, there were some interesting cases of Ambush Marketing. The South African airline Kalula, for example, has run ads in which it was declared as the “unofficial company of what you know what” in a clear satire to the prohibitions imposed by FIFA, which had started a law suit against the company. This campaign was recognized as one of the most successful because of its international repercussions.
The practice of Ambush Marketing, different from what it was believed, is an ancient practice. For example, the classic “Number 1 signal” that the Brazilian players made to celebrate their goals at the 1994 World Cup, in a clear honor to the Brahma beer, and there is no question in this respect.
This practice was set by the World Cup General Law – Law No. 12.663 of 2011, as well as it was ranked into two types: ambush marketing by association and ambush marketing by intrusion, provided respectively in Articles 32 and 33 of this rule, and punishable from three months to one year in prison or a fine.1
Therefore, it can be noted that, ever since, companies that practice this type of marketing seek to catch a “ride” in events whose rights have been acquired by their competitors, which typically pay very high prices to sponsor them. These Ambush Marketing actions often call as much or even more the public attention than those advertising actions promoted by the official sponsors of the event. IOC defines this practice in its marketing guide (www.olympic.org) as “an attempt to create an unofficial association with the Games,” which “undermines the investment of genuine sponsors of the Olympics and impairs the ability of the Organizing Committee to sponsor the event successfully”.
In the 2014 World Cup, hosted by our country, FIFA reprimands were mild. In all cases, the Federation did not start any legal action for the Ambush Marketing practice, when it only had sent an extrajudicial notification to certain companies ordering them to simply removing or adequate their advertising campaigns or remove certain products from the market. Typically, Extrajudicial Notifications reach their main goal. Products are no longer sold and the campaigns are no longer disclosed. However, the companies have already taken advantage of the exhibition.
It should be noted that, although the Ambush Marketing expression gives the advertising practice a negative connotation, not always this practice is taken as an illicit act, although the boundary between legality and illegality is very subtle. We must consider the legitimate right of the official sponsors of curbing the illegal practice and the abuse of these rights, as well as to distinguish what is the result of the creativity and the ability of the marketer on what can be considered as illegal association.
Finally, it should be highlighted that, according to what is provided in Article 170, item IV of the 1988 Federal Constitution, 2 free competition is the basic and guiding rule, which means that all these rules must be interpreted to restrict competition as little as possible, provided they are interested in acting in a lawful manner. Courts must review each case concretely, always paying attention to the need to protect the legitimate rights of those who sponsor and enable holding important events and the constitutional guarantee of free competition as well.