Kangaroos and Ambush Marketing

Canada has recently enacted brand-new intellectual property legislation in preparation for the 2010 Olympic Games in Vancouver. The legislation targets ambush marketing, a topic about which Canadians know very little. Teresa Scassa, speaking at McGill’s Law Faculty last Friday, explained that ambush marketing is when a company carefully builds an association in the minds of the public between the company’s trademark and a major event – misleading its audience into falsely believing the company is an official sponsor.

One of the first cited examples of ambush marketing occurred during the 1984 Olympic Games, where Fuji was an official sponsor of the games but its commercial objectives were undermined by Kodak’s sponsorship of a major television broadcast and its association as the ‘official film’ of the US track team. Here Kodak used legitimate sponsorships to foster Olympic associations, but it seems big companies’ creative and legally-savvy marketers can always find ways to link their brand with an event.  Interestingly, the situation reversed itself for the 1988 Olympic Games, showing Kodak was perfectly willing to officially sponsor the event, while Fuji was equally willing to use ambush marketing techniques.

The International Olympic Committee (IOC) claims the rise of ambush marketing has been undermining the commercial objectives of official sponsors and consequently attracting sponsors is now a more difficult task for event organizers. In response, countries are compelled to enact legislation banning ambush marketing if they want their Olympic bids to be attractive to the IOC. Trademarks not associated with Olympic sponsors are officially banned, forcing Canada’s Olympic hockey team to change their jerseys and leading more recently to the high-profile news story of the battle between the IOC and Australia’s trademarked Boxing Kangaroo, an event that generated an outburst of support online for the Australian team and criticism of the IOC. All of which leads to the question: What is the impact of ambush advertising and is this of international concern in sports?

As Scassa pointed out, with the current recession and a multitude of other factors it is difficult to determine how much of an effect ambush marketing is having on sponsorships deals in general. The Olympics depend upon the economic support that sponsorship deals bring, and it is in the interest of the event planners to protect them. A major dilemma in sports is that athletes independently depend on the support of sponsors and it is entirely foreseeable that a single athlete may be sponsored by Nike, their club sponsored by Reebok, and their event sponsored by Puma. Micheal Jordan stirred up such a controversy when he covered his Olympic Reebok sweatsuit with an American flag rather than risk losing his Nike sponsorship deal. Companies are not likely to support athletes and athletic events unless it is beneficial for them to do so, but these are big players with deep pockets and excellent legal teams. A greater question of whether passing legislation is really effective is another debate.

Certain words in Canadian advertisements (such as gold, silver, bronze, Vancouver, 2010) now set off legal alarm bells. But you only need to look at Lu Lu Lemon’s Cheer line for a “cool global sporting event” to see that sponsorship deals are not the only ways of cashing in. Scassa argues that those who will feel the greatest impact of this legislation are not the big companies, but the smaller businesses around downtown Vancouver trying to generate business off of the Olympic enthusiasm and energy who cannot afford high litigation fees.

In my opinion, ambush marketing legislation is unnecessarily broad and largely ineffective. Legal teams for companies who do not sponsor the Olympics are careful to add disclaimers onto advertisements, but clever marketers can always use a very public event to their advantage (see Roots clothing line in support of Right to Play Canada). It is troubling that so far the most public critical analysis of this type of legislation seems to have arisen from the reaction of the Boxing Kangaroo.  Hopefully if this legislation extends to other sporting events within Canada or if it is enacted in other nations it will begin to generate broader international attention.