Euro 2016: Ambush marketing risks in the UK
The Euro 2016 football tournament (or "soccer tournament" if you're American…) starts on Friday June 10th when hosts France take on Romania at the Stade de France in Paris. The tournament runs until Sunday July 10th and official sponsors such as Adidas, Carlsberg, Coca Cola and McDonald's are no doubt looking forward to the lucrative marketing and PR opportunities that Euro 2016 will provide in a football-mad country like the United Kingdom. A variety of non-sponsor brands are likely to want to get in on the action too, particularly with England, Wales and Northern Ireland all having qualified.
Ambush marketing is the term used to describe brands that directly or indirectly try to associate themselves with an event which they are not an official sponsor of. Naturally, it can cause huge frustration to both the event organisers and the official sponsors that will usually have paid huge sums of money to formally associate with the event and benefit from its goodwill. Businesses engaging in ambush marketing activities therefore need to be very careful to ensure that they do not breach any laws or regulations, for example by infringing a registered trade mark or publishing misleading advertising, unless they are willing to be on the receiving end of an expensive lawsuit or regulator action.
No bespoke legislation for Euro 2016
Some events benefit from bespoke legislation that is specifically designed to prevent ambush marketing. This was the case for both the London 2012 Olympics and the Glasgow 2014 Commonwealth Games, but no such legislation has been passed in the UK for Euro 2016. This means that the event organisers, UEFA, will have to rely on existing laws and regulations and other more practical measures in order to prevent ambush marketing.
Intellectual property laws
Various intellectual property rights could potentially be utilised by UEFA to prevent ambush marketing.
UEFA holds a number of registered European Union trade marks which relate to Euro 2016 including but not limited to EURO 2016, FRANCE 2016, UEFA, UEFA EUROPEAN FOOTBALL CHAMPIONSHIP and the official slogan for the tournament, LE RENDEZ-VOUS. They have also trademarked certain logos, the championship trophy and the tournament mascot, Super Victor, a child superhero who wears a red cape and the kit of the France national football team. Use of any of UEFA's registered trade marks (or any similar marks) by an ambush marketer could lead to a trade mark infringement action, although whether this would succeed in court would of course depend on the circumstances.
Logos, photographs, event footage and other official imagery for the tournament are likely to attract copyright protection which could be relied upon if an ambush marketer used any of those assets in its activities. Furthermore, certain assets, including the tournament logo and mascot, have been registered by UEFA as Community designs, which are valid in all European Union countries.
In addition to possible trade mark, copyright and design right infringement actions, UEFA could also potentially bring a claim under the tort of passing off. In order to do so it would need to establish that: (1) Euro 2016 has established reputation or goodwill which accrues to UEFA, (2) the ambush marketer has made a misrepresentation that it is associated with Euro 2016, which would usually be evidenced by showing confusion amongst the public, and (3) UEFA has suffered or is likely to suffer damage as a consequence.
CAP/ BCAP Codes
Whilst the CAP and BCAP Codes, the self-regulatory codes which govern UK advertising, do not prevent advertisers from mentioning events such as Euro 2016 if they are not official sponsors, it is worth remembering that they do contain a number of general rules against misleading advertising. The Codes also prohibit advertisers from taking unfair advantage of a competitor’s trade mark and require them to hold evidence as to the genuineness of any endorsements.
Guidance from the Committee of Advertising Practice (“CAP”) indicates that any suggestion that a brand has an official connection with an event when this isn’t the case is likely to result in the Advertising Standards Authority (“ASA”) finding the advertising misleading in the event of a complaint. The overall impression of the ad, including any imagery used, would be taken into account. An adverse ASA adjudication can attract significant negative publicity.
Note that misleading advertising is of course potentially vulnerable to attack under UK consumer protection laws as well, although they are unlikely to be invoked in cases of ambush marketing.
Ticket terms and conditions, stadium rules, etc.
UEFA has ensured that the terms and conditions for tickets to Euro 2016 matches include extensive protections against ambush marketing.
There are strict rules on the transferability of tickets, which expressly prohibit ticketholders from reselling or transferring their tickets, or offering or advertising their tickets for resale or transfer (whether for free or for consideration) subject to limited exceptions. Ticketholders are only permitted to transfer tickets to any guest(s) they will attend the match with or via UEFA's official ticket resale platform.
Furthermore, the ticket terms and conditions prohibit tickets being used for any promotion, advertising, fundraising, auction, raffle or any other similar commercial or non-commercial purposes or as a prize (or part of a prize) in any contest, competition, (promotional) game of chance, lottery or sweepstake.
Ticketholders are expressly banned from advertising promoting, giving away, distributing, selling or offering for sale any product or service from any part of the stadium or via the display of overt commercial messages on clothing worn or items brought into the stadium. The ticket terms and conditions supplement this wording with more generalised prohibitions on ticketholders (i) running any adverts or promotions relating to the tournament, its organisers or any match, or (ii) exploiting any marketing or promotional opportunities in relation to their tickets.
The stadium rules for the tournament, which are incorporated by reference into the ticket terms and conditions, also contain relevant wording, such as a prohibition on promotional, commercial objects or materials, including banners, signs, symbols and leaflets, being brought into the stadium without authorisation.
Those in breach of the above rules face having their tickets cancelled, being refused entry to the stadium or being ejected from the stadium with no right to a refund. They could also face legal action depending on the circumstances.
Note that there are other rules in the ticket terms and conditions which may be relevant to ambush marketing activities depending on the circumstances, such as restrictions on what ticketholders can do with any sound recordings, photographs or footage that they might take of the stadium or match.
Other potential risks
Players and teams participating in Euro 2016 also have official sponsors and rights such as trade marks and copyright that they will be keen to protect. Brands therefore also need to be careful that their marketing does not infringe the intellectual property of those players and teams or misleadingly suggest an official association with them.
Naturally, brands that do sponsor players or national teams will need to take particular care to ensure that they do not unintentionally suggest an official affiliation with the Euro 2016 tournament in any of their advertising that refers to the player(s) or team(s) that they sponsor.
Those looking to involve a footballer playing in Euro 2016 in their ambush marketing activities should be aware that this may have serious consequences for the player concerned. When Danish striker Nicklas Bendtner revealed Paddy Power branded underwear as he celebrated scoring a goal during a Euro 2012 match against Portugal, UEFA fined him €100,000 and banned him for one 2014 World Cup qualifying match for breaching regulations that banned any advertising on players' kits during the tournament. Paddy Power ultimately decided to pay the fine on Bendtner's behalf.
Finally, it is worth bearing in mind with respect to multinational ambush marketing campaigns that the level of risk may differ from country to country, including within Europe, due to differing local laws and regulator approaches. In France and Germany, for example, broad unfair competition laws could potentially be invoked, which are not an option in the UK.
What should businesses do?
Given that football enjoys enormous popularity throughout the UK and the rest of Europe, we will undoubtedly see a number of instances of ambush marketing of one form or another during Euro 2016. That said, UEFA has taken legal action against those involved in ambush marketing during previous European Championship tournaments, and so non-sponsors should definitely be wary of crossing the line with their activities.
Taking into account the following hints and tips when preparing any advertising should help to reduce the likelihood of non-sponsors encountering any issues:
- Avoid using registered word marks such as EURO 2016, FRANCE 2016 and UEFA as well as any other phrases, slogans or taglines that are associated with the tournament.
- Do not use imagery that may be protected by trade marks or copyright such as the official Euro 2016 logo and the tournament trophy and mascot.
- Avoid using colour schemes that are associated with the tournament, its organisers or sponsors.
- Be careful not to create any unauthorised associations with certain players or teams as this can also lead to legal issues.
- Generic images of footballs or references to watching sport are unlikely to cause problems in isolation, but advertisers should always consider the overall impression created by their ad.
Clearly ambush marketing often involves treading a fine line between referencing or alluding to an event appropriately and misleadingly suggesting an official association.
Those seeking advice about specific concepts or campaigns are welcome to get in touch by e-mailing me at firstname.lastname@example.org.
Mark Smith is a commercial lawyer based in Fieldfisher's London office and has a particular focus on advertising and consumer law issues.