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INTRODUCTION The employment of ambush marketing techniques has become more prominent in response to the recent marketing innovation of exclusive sponsorship agreements that allows one exclusive sponsor per product group. Event organisers and sponsors view marketing attempts by non-sponsors as dilution of the value of sponsorship and have been increasingly aggressive in protecting themselves. Although there are existing laws to protect their rights, event organisers continue to demand more protection and many have made event-specific legislation a prerequisite for selection of venues. This essay critically reviews whether special event legislation aimed primarily at preventing ambush marketing go further than is necessary to protect sponsorship rights using comparisons from across Australia, New Zealand and South Africa. Whether special legislation goes further than necessary is a question of how well the law balances the rights of the event organiser and sponsor to exploit the event, with the publics right to free speech and other commercial entities to compete. The answer will depend on a view of what constitutes ambush marketing and what activities should require additional legislative intervention on top of existing IP and consumer protection legislation. The analysis will also need consider how the enforcement of event specific marketing by event organisers impact on the right of free speech and free market forces. The essay concludes that in all three jurisdictions, the laws have gone too far regardless of the analytical framework used. LITERATURE REVIEW Ambush marketing has had coverage from a wide range of perspectives. Earlier analysis from general management and marketing journals discussed aspects such as the aims of sponsors, the effects of ambush marketing and the ethics of ambush marketing. Since the mid to late 90s, there has been much more interest from lawyers as different sporting bodies and event organisers found existing consumer protection and intellectual property (IP) legislation lacking in protection from ambush marketers and started to demand event specific legislation. Though there are academic discussions of the various event specific legislation, there are few comparative reviews of the Australian, New Zealand and South African regimes. There is little debate as to the general definition of ambush marketing though stakeholders add their own slant to push their agenda. The term was coined by Jerry Welsh while working at American Express 1 2 3 to denote creative marketing practises by competitors of official event sponsors to take advantage of notable sporting events without infringing on the specifics of the sponsorship agreement. Academic review of ambush marketing has generally been uncontroversial and neutral
1

Kerry Maxwell, Word of the Week Archive Ambush Marketing (15th August 2005) MacMillan English Dictionary <http://www.macmillandictionaries.com/wordoftheweek/archive/050815-ambush-marketing.htm> 2 Jerry C Welsh, Ambush Marketing: What it is; What it isnt, Welsh Marketing Associates <http://welshmktg.com/WMA_ambushmktg.pdf> 3 Felipe Dannemann Lundgren, Event Marks: A Necessary Form of Protection against Ambush Marketing? MIPLC Master Thesis (09/10) No.07

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on the ethics of the practices.4 5 Event organisers have unsurprisingly described in a much more negative light. 6 Later academic reviews of ambush marketing which have had the benefit of increasing number of examples have classified various tactics7 which will be useful in isolating issues for different forms of ambush marketing. Most academic discussions on ambush marketing touch on ethical issues though authors do not express a view or hold a firm position. Marketers have described it as creative tactics which is demanded by the shareholders of non-sponsors8 while event organisers obviously take a more negative view.9 Furthermore, there has been some discussion which recognises the opposing views of marketers and event organisers and proposes a framework for ethical analysis10 though most do not commit themselves to a specific ethical view.11 12 Existing Australian legislation and common law has been explored in various academic sources,13 14 which conclude that traditional measures are adequate when non-sponsor advertisements are deliberately misleading. Consumer protection laws provide recourse for sponsors and event organisers. It has also been noted in these sources that Australian IP laws present some difficulty. Other academic sources explore different event specific international legislation15 16 17 18 or analyse in depth particular pieces of legislation.19 20 However, limited academic analysis compares various event specific legislations in terms of whether they have gone too far from a legal and ethical perspective. This is what this essay aims to do.

Dennis M Sandler and David Shani, Olympic Sponsorship vs. Ambush Marketing: Who gets the gold? (1989) Journal of Advertising Research 9 5 Tony Meenaghan, Ambush Marketing: Immoral or Imaginative Practice? (1994) Journal of Advertising Research 77 6 International Olympic Committee, IOC Marketing Guide: Media Guide (2010) Olympic.org Official Website of the Olympic Movement <http://www.olympic.org/Documents/Reports/EN/IOC-MEDIAGUIDE-2010-EN.pdf> 7 Janet Hoek and Philip Gendall, Ambush Marketing: More than just a Commercial Irritant? (2002) 1(2) Entertainment Law 72 8 Note 2 9 Note 5 10 Paul OSullivan and Patrick Murphy, Ambush Marketing: The Ethical Issues (1998) 15(4) Psychology & Marketing 339 11 Note 10 12 Tony Meenaghan, Ambush Marketing: Immoral or Imaginative Practice? (1994) Journal of Advertising Research 77 13 Jane Sebel and Dominic Gyngel, Protecting Olympic Gold: Ambush Marketing and Other Threats to Olympic Symbols and Indicia (1999) 22(3) UNSW Law Journal 691 14 Lionel Hogg and Franki Ganter, Legal Issues in Sports Marketing (1997) 13 Queensland University of Technology Law Journal 92 15 Note 13 16 Note 3 17 Edward Vassallo, Kristit Blemaster and Patricia Werner, An international Look at Ambush Marketing (2005) 95 Trademark Reporter 1338 18 Stephen McKelvey and John Grady, An Analysis of the Ongoing Global Efforts to Combat Ambush Marketing: Will Corporate Marketers "Take" the Gold in Greece? (2004) 14(2) Journal of Legal Aspects of Sport 191 19 Louise Longdin, Major Event Regulation: Lessons For and From New Zealand (2008) 3(1) Australian and New Zealand Sports Law Journal 5 20 Note 13

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AMBUSH MARKETING

HISTORY
The history of sports marketing is critical to contextualising and understanding ambush marketing as it is a response to the growth of exclusive sponsorship arrangements. Between 1952 and 1972, the Olympic Committee eschewed commercialisation. 21 The 1976 Montreal Olympics had 628 sponsors22 but revenue was $48m USD.23 In the 1984 Los Angles Games, Peter Ueberroth introduced the concept of exclusive sponsorships. Sponsors were restricted to 34 but revenue grew to $249m USD.24 There was a similar effect on number of official merchandisers and merchandise license revenue. 25. Sponsors invest vast amounts with the expectation that the exclusivity afforded will give the high requisite return. Because of this, organisers and sponsors have an incredible incentive to protect the exclusivity arrangement. When other non-sponsor firms who were unable to obtain rights try to take advantage of the marketing opportunity presented by these major sporting events, the interests of exclusive sponsors and organisers clash with the other firms. The great increase in costs of sponsorship and reduced opportunity meant that many companies have had to resort to alternative marketing strategies to gain greater exposure to their brand during the special event.

DEFINITION
Ambush marketing refers to promotional activities by non-sponsoring firms that take advantage of the increased publicity afforded by the event. The term, as originally coined by Jerry Welsh, did not contain any kind of value judgement but rather denoted legitimate marketing practices.26 In fact, Welsh characterises creative marketing practices as a virtual necessity important, ethically correct *and+ competitive tool in a competitive market. 27 More importantly from a legal perspective, he notes that the sponsor has bought only specific rights and not all avenues to the public awareness of the property and the thematic space. 28 Definitions of ambush marketing afforded by early academic observers tended to range from a broad definition that suggested practices could be wholly legitimate and morally correct29 to much more neutral and muted.30 Event organisers have unsurprising taken a much more negative view in their definition, viewing

21 22

Anne Cooper-Chen, Global Entertainment Media: Content, Audiences, Issues (Lawrence Earlbaum Associates, 2005) Holger Preuss, The economics of staging the Olympics: a comparison of the Games 1972-2008 (Edward Elgar Publishing, 2006) at page 129 23 Note 22 24 Horst Seifart , Forum Sport and Economy: The Commercialization of Olympic Sport by the Media (1984) 19 International Review for the Sociology of Sport 305 25 Note 24 decrease in from 140 to 65 but increase in revenue from $7m USD to $25m 26 Note 3 27 Jerry C Welsh, Ambush Marketing: What it is; What it isnt, (2007) Welsh Marketing Associates <http://welshmktg.com/WMA_ambushmktg.pdf> at page 1 28 Note 27 at page 2 29 Tony Meenaghan, Ambush Marketing: Immoral or Imaginative Practice? (1994) Journal of Advertising Research 77 30 Dennis M Sandler and David Shani, Olympic Sponsorship vs. Ambush Marketing: Who gets the gold? (1989) Journal of Advertising Research 1989 9

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ambush marketing as marketing that capitalizes on the goodwill of the Movement by creating a false, unauthorized association.31

TOPOLOGY
Detailing different categories of ambush marketing is useful in allowing us to discuss various types of behaviour and how existing and new event specific legislation affects each category. A recent Topology in the MIT Solan Management Review32 proves to be the most comprehensive and n adapted version with additional comments and examples where appropriate. Broadly, there are three categories of ambush marketing, direct, indirect and incidental.

DIRECT
Direct ambush marketing describes tactics which are more blatant in trying to associate with an event. IP misappropriation to induce association is an obvious example. Unauthorised uses of official logos are rare, given existing IP laws are usually adequate to deal with such misuse. On the other hand, there are more ambiguous cases such as the New Zealand Telecom RING campaign.33 BellSouth was the official sponsor of the New Zealand Olympic team and had exclusive rights to promote itself as such. New Zealand Telecom commenced an advertising campaign where it placed the word RING in a similar pattern and colour as the Olympic rings. The Olympic Committees submission that this amounted to trademark forgery was dismissed.34 Another form of direct ambush activity is coattail ambushing or procurement of sub-category rights. This is where the firm uses a legitimate link with connected with the event to induce association such being a broadcast sponsor or sponsoring specific athletes or teams. Examples include Kodaks purchase of broadcast sponsorship rights when Fuji was the official sponsor of the 1984 Los Angeles games35 or Pepsis sponsoring French track athlete Marie-Jos Perec in the 1996 Atlanta games where Coca Cola was the official sponsor. 36 Event organisers are able easily contract out such tactics by athletes and partners are not able enter additional sponsorship agreements with other parties.

INDIRECT
Indirect tactics developed as event organisers brought legal action and tightened sponsorship contracts as well was ticketing conditions. Such forms of ambush marketing are more subtle and thus can be much harder to guard against without specific legislation. Associative ambush marketing is where the non-sponsoring firm uses imagery, symbolism or terminology that implies a connection with the event. This includes the American Express You

31

International Olympic Committee, IOC Marketing Guide: Media Guide (2010) Olympic.org Official Website of the Olympic Movement <http://www.olympic.org/Documents/Reports/EN/IOC-MEDIAGUIDE-2010-EN.pdf> 32 Simon Chadwick and Nicholas Burton, Ambushed!, (2010) MIT Solan Management Review Executive Advisor < http://sloanreview.mit.edu/executive-adviser/2010-1/5212/ambushed/> 33 NZO&CGA Inc. v Telecom New Zealand Ltd (1996) 7 TCLR 167 34 Note 7 35 Note 3 at page 16 36 Note 3 at page 17

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dont need a Visa campaign in the 1992 Barcelona games. 37 More recent examples include Nikes creation of products that used the number 8, taking advantage of the 08.08.08 theme of the 2008 Beijing Olympics and Kululas use of the slogan "Unofficial national carrier of the 'You-know-what'" during the 2010 South African World Cup.38 This category can also include competitions for tickets, travel packages or other promotions related to the event. In AMEX case, the IOC threatened to bring an action though it ultimately did not do so. With Kulula, FIFA had threatened to bring action under South Africas event-specific legislation and Kulula withdrew the advertising.39 Values ambushing is a specific kind of associative marketing where the non-sponsoring firm uses the events central value. For example, Qantas ambush of Ansett using the slogan Sprit of Australia, bearing a resemblance to the 2000 Sydney Olympic Games slogan of Share the Sprit. Some associative and value ambush marketing tactics that go too through broad consumer protection legislation though it would depends on the facts of each case. Distractive or insurgent ambushing is when a non-sponsoring firm commences promotions near the actual event without referring to the event itself. Examples include Bentleys display of cars outside the Hillside Golf Club directly adjacent to the venue for the 2008 Open Championship,40 Holdens use of a blimp over major events sponsored by rivals41 and K-Swiss setting up a huge tennis ball over a car crash at the 2008 French. These tactics are difficult to guard against without event specific legislation. This can be easily prevented with strict ticketing conditions. Parallel property ambushing is a relative new practice where the non-sponsor creates an event similar to the principal event in order to capitalise the goodwill and public attention directed to the ambushed event. Nike created a global counter-event called the Human Race across 24 different cities to profit from the goodwill of 2008 Beijing Olympics. 42

INCIDENTAL
A final broad category is incidental ambushing. These techniques are even further removed than indirect marketing and may not even intentional. Saturation ambushing describes the practise where a non-sponsor greatly increases advertising during the event without any reference to the event for example, Lucozade aggressively marketed its sports drinks during the 2008 Beijing. It would be extremely difficult for event organisers to prevent this behaviour. Unintentional ambush describes increased media coverage of sporting equipment or products. Nike for example, received increased media coverage at the 2008 Beijing games due to the success of swimmers using their LZR swimsuits.

37

Simon Chadwick and Nicholas Burton A topology of Ambush Marketing (2009) The CIBS Working Paper Series <http://www.coventry.ac.uk/researchnet/external/content/1/c4/53/26/v1245765660/user/CIBS_WP10.pdf> at 14 38 Note 3 at page 17 39 Note 3 at page 17 40 Note 37 at 15 41 Richard Blackburn, Holden blimp 'un-Australian' (10 November 2006) The Sunday Age <http://www.drive.com.au/Editorial/ArticleDetail.aspx?ArticleID=21508> 42 Note 37 at 15

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LAW

GENERAL LAW
Before the pressure from event organisers to introduce event-specific legislation, most jurisdictions had some legal protections against some of the more blatant forms of ambush marketing. This included IP laws, consumer protection laws and the common law of passing off. In Australia, consumer protection law43 prohibits misleading or deceptive conduct. The standard is an objective one that is dependent on the level of audience to which the conduct is directed to44 and using a caress but not unusually stupid person that class of people as the standard.45 This provides protection for event organisers and sponsors protection in most circumstances of direct ambush marketing and in associative ambush marketing practices though whether it is a question of degree and depends on the facts of the case. Related to misleading and deceptive conduct is the common law of passing off though one of the elements is damage to the goodwill which is difficult to prove in an ambush marketing context. IP law should create rights in relation to the event organisers properties, however they are problematic in Australia. Trademarks are the most appropriate means of protecting event organisers from many forms of direct and associative ambush marketing. However, the Trade Marks Act 1955 (Cth)46 states that a trademark must be rejected if it is not capable of distinguishing the applicant's goods or services. This is the biggest limitation to the Australian Olympic Committee (AOC) or other event organisers from using trademarks as a means of protection from ambush marketing.47 Using copyright or designs were also problematic as both required originality48 and both did very little to prevent ambush marketing relating to false association.49 New Zealand has a similar legislative regime to Australia having equivalent misleading and deceptive conduct provisions50 and common law tort of passing off. New Zealand trademark legislation does not have the limitations of the Australian laws51 offering greater IP protection to event organisers. Unauthorised use of trademarks could result in injunctions and damages against the infringer. Thus New Zealand has stronger existing protections against ambush marketing especially with trademark misappropriation and associative ambush marketing. Many other jurisdictions52 have similar IP and consumer protection legislation in place and some common law torts53 that protected against some forms of ambush marketing.

43 44

Competition and Consumer Act 2010 (Cth) s18(1) Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199 45 Finucane v New South Wales Egg Corp (1988) 80 ALR 486 and Siddons Pty Ltd v Stanley Works Pty Ltd (1991) 99 ALR 497 46 s41(2) 47 Note 13 at page 696 48 Designs Act 1906 (Cth) s17(1) and Copyright Act 1968 (Cth) s32 49 Note 13 at page 695-697 50 Fair Trading Act 1986 (NZ) s9 51 Trade Marks Act 2002 (NZ) part 2, subparts 2 and 3 do not state any specific grounds that would prohibit registration of the Olympic trademarks 52 The essay does not explicitly review these given length constraints. 53 Note 17 at 1344, tort of interference with contract and interference of prospective advantage

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EVENTSPECIFIC LEGISLATION
In Australia, the 2000 Olympic games served as an excellent example of comprehensive eventspecific legislations. There two pieces of legislation enacted to assist the AOC with issues around difficulties with registration under IP law and poor enforcement powers. The purpose of the Olympic Insignia Protection Act 1987 (Cth) was to allow the AOC to have monopoly rights of copyright and designs related to the Olympic symbols and overcome the difficulties of registration. It deemed the Olympic Symbol as an original artwork54 for the purposes of the Copyright Act 1968 and gave the AOC ownership of copyright for an indefinite period of time.55 It also gave the AOC rights in registered designs56 featuring the Olympic Symbols for 12 years.57 Further, the legislation gave enforcement rights to the AOC, but licensed users may bring enforcement action with the permission of the AOC.58 The Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Cth) was designed specifically to combat associative ambush marketing and protect licensing revenue.59 It did so by creating a wide range of protected indicia,60 including generic and descriptive terms that cannot be covered under existing IP laws and images 61 and grants the monopoly rights the organising committees and license them to sponsors. These rights only lasted until December 2000.62 Enforcement is left to the relevant organising committees and licensees who are able to seek a wide range of remedies such as injunctions, corrective advertisements and damages.63 Taken together, these two pieces of legislation are extremely effective in providing protection to the AOC and other relevant organising committees against direct IP right misappropriation, as well as casting a very broad net against even some of the more subtle attempts of associative and value-based ambushing. The NSW parliament also enacted the Olympic Arrangements Act 2000 (NSW) to supplement Commonwealth legislation and give organisers greater onsite control. It prevented advertising on buildings and structures, aerial advertising and broadcasting in Olympic areas including Homebush and the Sydney foreshore.64 It also gave police and a wide range of authorised officers65 wide ranging crowd control powers to remove people using reasonable force. This is law can be easily used prevent intrusion tactics such as distractive or insurgent ambushing. New Zealand has recently enacted the Major Events Management Act 2007 (NZ) that operates similarly to the Victorian legislation in that it contemplates repeated use of the same legislation for

54 55

s5(1) s5(2) 56 s6 57 s2 definition of protected period is 12 years 58 Graeme Orr, Marketing games: the regulation of Olympic indicia and images in Australia, (1997) 19(9) European Intellectual Property Review 504 59 Senate Legal and Constitutional References Committee, Cashing in on the Sydney Olympics: Protecting the Sydney Olympic Games from Ambush Marketing (1995) 60 s8 61 s9 including any visual or aural representation that a suggest a connection to the games to reasonable person 62 s55 63 ss43-47 64 ss66-68 65 Which will include private security guards, military personnel and intelligence agents from other countries.

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various events that the Governor General can declare the legislation applicable to,66 though it is a high bar and the Governor General must take into a number of factors one of which being attraction of significant sponsorship. Once declared, the legislation gives event organisers broad coverage against ambush marketing. In relation to trademark infringement and associative ambushing, the legislation allows the Governor General to declare certain words, phrases and emblems to be protected. By design, the legislation was designed to allow the Governor General to cast a wide net of possible protected terms going far beyond trade marking legislation in order to protect commercial interests.67 Further, there are other elements that favour the interests of event organisers and sponsors. First, there is a prohibition to making representations likely to suggest an association with the event68 with association defined a relationship of connection, whether direct or implied, such as approval, authorisation, sponsorship or commercial arrangement. 69 It has been noted by academic commentators that this section prevents courts from reading down the concept of representation to exclude purely enabling conduct in the way that sometimes occurs in fair trading cases.70 Second, there a presumption of breach of the representation uses any protected logos, phrases and any representations that so closely resembles a major event emblem, a major event word, or major event words as to be likely to deceive or confuse a reasonable person.71 This is a lower test than in consumer protection legislation and would catch out the New Zealand Telecom RING style advertisements. The legislation also provides for distractive and insurgent style ambushes. The Minister for Economic Development may declare clean zones, periods and transport routes. 72 There are prohibitions against street trading, 73 unauthorised advertising in the clean zone, 74 unauthorised advertising viewable in the clean zone75 and unauthorised advertising in very large clean transport routes during a clean period.76 These provisions are sufficiently broad to stop all but the subtlest of ambush marketing attempts at the cost personal freedoms. Further exacerbating this is the fact that the legislation allows for the appointment of lay enforcement officers77 with broad sweeping powers including issuing formal warnings, seizing things in clean zones and obtaining search warrants.78 The section on pitch invasions are also useful for preventing disruptive ambush marketing, however it is notable that the maximum penalty for such action is three months jail term and a $5,000.79

66 67

s7 Hon David Parker, 637 Hansard (20 February 2007) at page 7494 68 s10(1) 69 s4 70 Note 19 at page 22 71 s11(1) 72 s16 73 s17(1) where street trading is defined as both selling and giving away goods. The goods need not be any related nonsponsoring firms nor does it have to have anything to do with the event. 74 s18 designed to stop non-sponsors from giving away free merchandise promoting their own brand. 75 s19 76 s20 77 s39 78 s40 79 s3(1)(a)(iii)

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South Africa does not have any event-specific legislation though amendments to existing laws have been extremely favourable to organisers. In particular, their consumer protection law 80 was amended to not only prevent companies representing that they are associated with an event or sponsor, but more importantly, prescribed a maximum of two years imprisonment for contravention.81 Trademark legislation82 was also amended to, where an event is declared to be protected, prohibit companies to use their own trademark in a way that associates with or alludes to the declared event. DISCUSSION

DEFINITION OF TOO FARAND FRAMEWORK FOR ANALYSIS

To answer the question, there needs to be a framework to determine how far is too far. A pure legal rights base approach provides a satisfactory answer. However the overall ethics of the practices and broader implications should be considered to help define contextualise the appropriate legal response.

LEGAL RIGHTS-BASED VIEW

One view is to look at what rights event organisers actually have available to contract to sponsors and how the law should balance protection of those rights with the personal freedom and free market principles. The question then becomes, are those sponsorship rights adequately protected by existing legislation? If not, does the event specific legislation protect those rights while adequately balancing the interests of other firms and individuals? At the most basic level, event organisers have the right to exploit the IP generated by the event. Sponsorship agreements are an exclusive right of association. As Welsh noted, sponsorship does not buy the right to the thematic space of the event.83 Thus the law should protect organisers and sponsors from IP misappropriation. It should also prevent some forms of coattail ambushing, associative ambushing and disruptive/insurgent that create a false association with the event and a non-sponsoring firm. It should however not prevent any advertising that occupied the thematic space but do not imply false association. Parallel property ambushing and unintentional ambushing should clearly not be covered. Under that analysis, the IP of organisers would not have been adequately protected under Australian law with issues of registrability and enforcement though consumer protection laws and passing off would have provided some protection against false association. Organisers should get some additional legal protection for IP and increased enforceability on false association. The Olympicsspecific legislation then has gone too far in the sense that it protects a range of generic and descriptive phrase and images84 which were not registrable in the existing laws as it would be too
80 81

Trade Practices Act 1976 s9(d) Note 79 s19 82 Merchandise Marks Act 1941 s15A 83 Note 2 at page 2 84 Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Cth)

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biased towards the registrant. Further, the legislation on disruptive and insurgent ambushing is too blunt of an instrument. It protects the whole thematic space and allows for a too wide a range of authorised officers who have broad sweeping powers. The redeeming feature compared to the New Zealand scheme is that, with the exception of some IP rules, all other provisions were limited to one specific event. Further event-specific legislation would require parliamentary consent. Adding a general exclusion for activities that which are not false or misleading or do not imply false association would have been gone some way to strike a balance between the rights of all stakeholders. The existing New Zealand legislation did not have the same IP law issues as in Australia. Together with the consumer protections laws, the situation in New Zealand would have been close to ideal. Some additional limited crowd control powers what allowed for a quicker response to insurgent ambush practises would have been sufficient to protect the rights of event organisers and sponsors. Clearly, the Major Events Management Act 2007 went too far. Ministerial, rather than parliamentary discretion to declare events and protected IP, a blunt and easily abused regime for protection against insurgent ambushing, lowered test for association and jail time for pitch invasions. This gives event organisers too much protection at an unacceptable cost to personal freedoms and competing firms ability to legitimately compete in the same thematic space. In South Africa, the most obvious issue is the potential incarceration for a consumer protection issue is completely disproportionate that it, prima facie, goes too far. Like the New Zealand legislation, it has a looser requirement for association than traditionally in consumer protection laws. South Africa has had two notable events under these laws, namely the 2003 Cricket World Cup and the 2010 FIFA World cup. These experiences showed how strong laws and a government eager to attract major sporting events can lead to absurd enforcement outcomes. For example, in the Cricket World cup, hundreds of school children were stopped and forced to strip Coca Cola labels off the bottles in their lunch boxes as Pepsi was the official sponsor.85 In the 2010 FIFA World Cup, two women were arrested for an insurgent marketing stunt involving 26 women wearing orange dresses promoting Bavaria.86

ETHICAL VIEW POINTS

As noted in the literature review, academic analysis on this is fairly limited with most commentators remaining fairly neutral as to the ethics of the practice87 though there has be an attempt to analyse ambush marketing through various ethical frameworks88 and we use this as a basis for the current

85 86

Note 17 at 1349 World Cup 2010: Women arrested over 'ambush marketing' freed on bail, (16 June 2010) The Guardian <http://www.guardian.co.uk/football/2010/jun/16/fifa-world-cup-ambush-marketing> 87 Note 12 88 Note 10

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ethical analysis.89 Consumer research suggests that ambush marketing does reduce the value of sponsorship through reducing brand recognition90 and would a disincentive for further sponsorship. Utilitarianism views the maximisation of net benefit for all as the best outcome. A simplified view here would start with the assumption that having the sporting event enjoyed by millions of spectators worldwide maximises the net benefit. Thus rampant ambush marketing would reduce willingness of sponsors to continue at a high level of financial support which would threaten the viability of global sporting events. High levels of ambush is beneficial for the ambushing firms and advertisers who would be able to charge higher prices if ambushers increase the demand for advertising opportunities. Spectators arguably benefit from increased awareness of a greater number of products and services. Such outcomes based frameworks would suggest that it is a question of degree and that there is an acceptable level of ambush marketing especially of higher enforcement will result in an unacceptable loss of personal freedoms and distortion of free market forces. The final outcome should then be roughly comparable to the conclusion under a legal rights based approach in that laws should minimise confusion amongst consumers and spectators. The utilitarian view may in fact, produce laws that actually increase the thematic space such as parallel property ambushing or certain insurgent or disruptive ambushes which have clear disclaimers as to who the official sponsor is and that the current product is from a non-sponsoring firm. Stakeholder analysis for the event looks at the effect of ambush marketing on all relevant players. At a very basic level, this is similar to utilitarianism in that it looks at the interests of all those involved however the end goal is not net benefit to all but rather to assess the impact to everyone. On that analysis, the law should prevent ambush tactics that significantly harm sponsors and event organisers but not more marginal and subtle forms of ambush marketing that does not cause confusing amongst spectators and viewers. The laws enacted also should not cause significant detriment to those spectators actually at the events by reducing their personal freedoms. Thus this view would also produce a result under a purely legal rights-based approach though with a greater focus on the law being a less obtuse tool, considering each class of stakeholders to ensure that neither the law now the other stakeholder act in a detrimental way. CONCLUSION Ambush marketing has grown significantly with the advent of exclusive sponsorship contracts. Law makers, in attempt to attract global sporting events have enacted event-specific legislation. Being sympathetic to event organisers means that legislation has been enacted with the view that all marketing attempts by non-sponsors need to be controlled in some way. As a consequence, in the examples we examined, laws are too favourable to organisers and sponsors at a cost to personal freedoms on individuals and legitimate marketing practises of competing firms.

89

Duty-based ethics and virtue ethics are excluded as they are prescriptive theories which fail to add any value to the current discussion of how far the law should go. 90 Note10 at page 354