‘Ambush marketing’ is a term coined in the marketing world to describe advertising that creates an association between a major sporting event and a particular product, service or business – without the event organizers being able to benefit from the usual lucrative sponsorship agreement. Traditional IP laws have not been much use in dealing with the more sophisticated forms of ambush marketing. Trademark law, for example, would prevent a company from using the trademarks of a major sporting event without consent (in the form of a sponsorship agreement), but clever ambushers do not need to use these trademarks to create associations with a high profile event. For example, when Germany hosted the FIFA World Cup in 2006, Air Emirates was the official airline of the event. Its competitor, Lufthansa, painted the pattern of soccer balls on the nose cones of its airplanes. The association was created without use of anyone’s trademarks. There are many other .

Event organizers – keen to extract the maximum in sponsorship revenues from sponsors – have long struggled against ambush marketing. There are at least two main types of ambush marketing, and a third is also gaining recognition. These are intrusion, invasion and association.

Intrusion and invasion occur when the trademarks of non-sponsors enter the spaces dedicated to the major sporting event, preserving spatial exclusivity for event sponsors. Intrusion occurs when branded items enter event venues on the person (or vehicles) of attendees. Invasion involves a more deliberate plan – perhaps by a group of attendees and perhaps organized by a non-sponsor company. A notorious example is that of the to a FIFA event in South Africa in 2010. Intrusion and invasion have long been addressed through ticket clauses that prevent ticket holders from wearing clothing bearing the visible trademarks of non-sponsors, and from bringing into the venue products (such as bottled water or soft drinks) bearing the trademarks of non-sponsors. The Pan Am/Parapan Am Games 2015 are no exception. Ticket specifically prohibit ambush marketing in clause 11(c) (“whether by invasion, intrusion or otherwise”), There are also restrictions on bringing food or drink into the venue. While this is in part to push attendees to purchase such items from on-site vendors, it also limits the possibility of non-sponsor items from entering TV camera sight planes. There are also separate restrictions imposed by organizers on athletes in terms of how visible logos can be on sporting wear and other equipment they use. Consistent with our wired age, the of the Pan Am/Parapan Am Games 2015 website also prohibit use of the website or any official social media sites for ambush marketing.

Ambush marketing by association is harder to deal with, particularly where it does not infringe existing IP laws. Major sporting event organizers (the IOC, FIFA, etc) have begun to pressure countries that bid for their events to put in place legislation to protect not only against ambush marketing by association but also ambush marketing by intrusion. Some countries have introduced event-specific laws; others, such as New Zealand, have introduced that can be applied to any event designated as a major event. These laws make it illegal to create an “association” with an event. Olympic-related legislation has tended to do this by, among other things, creating lists of words that, if used by advertisers, are considered problematic. In unitary states, such laws have also provided protection against ambush marketing by intrusion. Whereas previously event organizers could only control private spaces associated with the events through ticket clauses and other contractual agreements, such laws controversially restrict the use of non-sponsor trademarks and advertising in wide swaths of public space, including airports, public transit lines, public parks and streets near event venues.

Canada enacted its first anti-ambush marketing law for the 2010 Vancouver Winter Games. The commitment to do so was made to the IOC in the bid documents. The (OPMA) created a special status and special protection for Olympic and Paralympic marks. It also created a separate recourse against ambush marketing by association. Because Canada is a federal state, and the provinces have jurisdiction over property and civil rights, the law could not address ambush marketing by intrusion into the spaces around Olympic venues. This was done by Vancouver City by-laws, a number of which were by the B.C. Civil Liberties Association. As with other legislation of this kind, the statute created lists of words, the use of which were considered suggestive of ambush marketing. These included common words such as: Vancouver, twenty-ten, 2010, Whistler, gold, silver, bronze, winter, and so on.

Legislating against ambush marketing is of questionable value. Action taken by event organizers against small or local businesses (or women wearing orange dresses) can create a sense of public outrage that is perhaps more harmful to the goodwill associated with the event than ambush marketing itself. Further, as Canada’s bold Olympic ambushers illustrated in 2010, associations can be created by encouraging the public to celebrate “Canada”, and it is difficult to see how a major sporting event can claim any form of monopoly over displays of national pride. Anti-ambush marketing legislation may also raise interesting freedom of expression issues so far as it relates to small and local business making reference in their advertising to events taking place in their communities. Of course, small businesses generally do not have the resources to fight legal battles over marketing; once they receive a cease and desist letter from event organizers, they tend to cease and desist. High profile competitors of event sponsors, on the other hand, have legal departments at their service to vet their advertising campaigns to ensure they fit comfortably within legislative loopholes. The effectiveness of such laws is open to question; their overall impact may even be negative.

In Toronto’s bid to host the Pan Am/Parapan Am Games it promised to ask the federal government to extend the application of the OPMA to the Pan Am/Parapan Am Games (see , page 189). In other words, as with other major events, the promise of legislation to address ambush marketing was made a part of the bid. In this case, the extension has not materialised. Instead, the organizers have contented themselves with a series of official marks (a special category of trademarks available to “public authorities” in Canada). As far as local businesses are concerned, the organizing committee has issued on how to reference (or not reference) the games.

The approach seems far lighter than recent examples, although the Pan Am/Parapan Am Games are lower profile than the Olympics or FIFA events. But perhaps it is evidence of an important lesson learned: that there are limits to the use of law and legal institutions to address problems such as ambush marketing.

is the Canada Research Chair in Information Law at the University of Ottawa. Some of her writing on ambush marketing and the law can be found , and .

The post On Your Mark, Get Set, Go! Ambush Marketing and the Pan Am/Parapan Am Games 2015 appeared first on IPOsgoode.

Vancouver-based yoga sportswear company Lululemon , just in time for the 2010 Olympics. The new line of sweatshirts, tuques, and t-shirts features the colours of Canada, the United States, Germany and Sweden and is cheekily titled the “Cool Sporting Event That Takes Place in British Columbia Between 2009 & 2011 Edition.” Though clearly intended to cash in on the upcoming Olympics, VANOC has signaled that it does not intend to pursue legal action against Lululemon. VANOC did, however, condemn the new line as disappointing and poor sportsmanship. It appears that through some clever maneuvering Lululemon has successfully slipped through the “ambush marketing” provisions of the [OPMA].

Ambush marketing refers to the practice of non-official sponsors of large events creating associations between themselves and the event through clever marketing (much to the chagrin of official sponsors who shell out big bucks for those exclusive rights). Unlike traditional common law "passing off" cases where a manufacturer confuses and misleads consumers as to the source of its goods, with ambush marketing the ambusher trades under their own name but creates confusion as to whether they are associated with the event or not. For the 2010 games the Hudson’s Bay Company is the official clothing sponsor and has the contract to design, market, and sell all the official Canadian Olympic gear.

The leading case on ambush marketing in Canada is NHL v. Pepsi (1992), 92 D.L.R. (4th) 349, 42 C.P.R. (3d) 390 (B.C.S.C.), aff'd (1995), 122 D.L.R. (4th) 412, 59 C.P.R. (3d) 216 (B.C.C.A.). The NHL had signed an exclusive marketing deal with Coca-Cola where Coke would be the sole soft-drink sponsor for the Stanley Cup Playoffs. However, through a bit of maneuvering Pepsi secured TV ad space during the playoffs and launched its own playoff hockey-themed advertising campaign (featuring Don Cherry, no less). The BC Superior Court held that Pepsi had not committed a passing off, nor had it committed various other economic torts. The court noted that Pepsi had included a disclaimer in all of the ads, and that the NHL was in some sense the author of its own misfortune when it failed to tightly control its TV advertising. It appears therefore that ambush marketing of this sort is not typically illegal in Canada.

But that’s not the end of the story so far as Olympic merchandising goes. In 2007 Parliament passed the OPMA, an act which grants a kind of “super official mark” status to the Olympic marks, providing greater protection than even what is offered for Government of Canada marks. The OPMA was covered previously in a , as well as in University of Ottawa law Professor Teresa Scassa’s 2008 article “” (available with QuickLaw account). The strong IP protection in the OPMA was essentially part of the deal Canada made with the IOC when Vancouver was awarded the Olympics, and all the other recent Olympic countries have enacted similar legislation.

Section 4(1)(b) of the OPMA (the ambush marketing provision) makes it illegal to mislead the public into believing that a business association exists between a non-sponsor company and the Olympics. It is possible that VANOC could use this section to get an injunction against Lululemon, but they evidently have decided not to go this route. Perhaps this is because Lululemon’s carefully drafted clothing line avoids using any of the Olympic marks, and through its smart alecky branding the company actually implies that it is not an official sponsor. Or, perhaps VANOC just wants to avoid the bad publicity of a lawsuit against a well-known Canadian company.

The whole situation raises some questions about what the Olympics are really about and whether they are really the boon for local businesses that they are made out to be. The Olympics have been criticized in recent years for being less about sporting excellence and more about being a massive marketing cash-grab. Smaller Canadian companies and certainly local Vancouver businesses have no chance at being official Olympic sponsors, and the IOC seemingly would like to see them completely shut out, with the profits instead flowing to the big-ticket advertisers like Coke, McDonalds, and GE. Though certainly not a mom and pop operation, Lululemon is nevertheless a Vancouver-based clothing company, and it doesn’t seem unreasonable to me that they and other Vancouver retailers should be able to capitalize on the massive “cool sporting event” that will shortly be gripping their city.

The post Ambush! Lululemon Scores on VANOC appeared first on IPOsgoode.