By Nick Breen (partner) and Mikaela Belcher (associate) at Reed Smith.
FIFA has reported that the World Cup 2022 group stages have attracted record-breaking TV audiences in multiple markets around the world. Despite the controversies surrounding the tournament, the buzz that the World Cup is generating is undeniable and many advertisers will naturally turn to ambush marketing to capitalise on consumer attention on the tournament.
Ambush marketing takes place where an advertiser promotes its brand, products or services in a way that takes advantage of the buzz and goodwill surrounding high profile events like the World Cup, despite having no official connection to the event. However, there is no established definition of ambush marketing.
National laws typically provide little direct protection for event operators and sponsors against ambush marketing. Unfortunately for would-be ambushers, organisers of major sporting events like the World Cup are increasingly seeking to close this gap by requiring host countries to pass special legislation for the event to protect against ambush marketing – this is, for example, a requirement for any nation bidding to host a summer or winter Olympic Games.
FIFA habitually imposes significant obligations on host nations, including the requirement to amend local laws to accommodate FIFA’s licensing requirements and so it came as no surprise that as part of its preparations for the World Cup, Qatar enacted Law No. 10 of 2021 on Measures for Hosting the FIFA World Cup Qatar 2022 (“Law No. 10”). This introduced, amongst other things, sweeping measures to protect FIFA’s so-called ‘commercial advertising rights’. In short, this means that those carrying out ambush marketing activities in Qatar are more likely to face legal action. If you’re planning an ambush in Qatar, particularly one in proximity to a World Cup stadium, taking local legal advice in advance of any such marketing activities will be vital to ensure compliance with local law.
Outside of Qatar
Whilst the powers introduced by Law No. 10 are extensive, there is nonetheless one very significant weakness: Law No. 10 has limited territorial application. This means that ambush marketing campaigns that take place outside of Qatar are unlikely to be caught by Law No. 10. Beyond Qatar’s borders then, FIFA must rely on national regulations and intellectual property protection. This leaves a gap in direct legal protection that savvy advertisers may seek to exploit.
As demonstrated by the multitude of playful football themed ads on our screens and streets, many advertisers have jumped at the chance for an ambush. However, not all advertisers have managed to skirt the rules with the same degree of success. For example, in the UK, the phrases “World Cup”, “World Cup 2022”, “FIFA World Cup 2022” and “Qatar 2022” are all FIFA registered trade marks. This means that FIFA has the exclusive right to exploit and licence these marks in connection with the goods and services for which they are registered. Advertisers who use identical or similar marks – for example, #WorldCup2022 – in the course of trade without authorisation may face legal action for trade mark infringement and, potentially, substantial damages.
Plotting a strategy to ensure compliance with the rules on misleading advertising can also leave would-be ambush marketers with a headache. Under these rules, advertisements must not be likely to mislead consumers. This means that advertisements that imply an official relationship or commercial connection between the advertiser and FIFA or the tournament when there is none may well fall foul of the rules. The point of ambush marketing is to take advantage of the excitement surrounding a major event and to associate the advertiser’s brand with that buzz, and so achieving compliance with misleading advertising rules often requires close collaboration between marketing and legal teams.
Intriguingly, this year some brands have taken the unusual step of confirming ‘non-sponsor’ status in their ambush marketing materials. This action highlights the commercial and moral conundrum that has been the key challenge for ambush marketers this year. How do you celebrate football, whilst maintaining distance from the tournament and all its well-publicised controversies? After all, those who explicitly address these controversies risk alienating fans who are as excited as ever about the football (and the tantalising possibility of it coming home.)*
*As you probably know by now, it isn’t.