Clearing the Legal Hurdles in Ambush Marketing Promotions

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Thanks to the commitment and support of our members, the Media Financial Management Association serves as a valuable resource for its membership and the industry on “ideas working now.”  The benefits of MFM membership also include ongoing education, industry networking, and the opportunity to develop leadership skills.


Before passing along some ideas from one of our members on getting the greatest benefit from ambush marketing promotions, I wanted to take a minute and tell you about a new program that is designed to recognize leadership among the industry’s financial management professionals.

I am pleased to be able to say that MFM is, once again, stepping out on behalf of the business and financial professionals in media.  Have you ever noticed that when industry recognition is handed out, it never goes to those in the business department?  We are setting out to change that by creating a special “People to Watch in 2010” section in the January-February issue of The Financial Manager magazine.  Anyone can nominate a person to watch and the nominees do not need to be MFM members to be considered.  If you know someone who should be recognized for his or her media financial leadership, please download the nomination form and get it to us by August 14th. 

Speaking of MFM members who are making a difference for their customers, companies and the industry, here’s some “ideas working now” advice from Christopher J. Sova, an attorney with the Washington, D.C. firm Lerman Senter PLLC., for stations that are thinking about tying promotions to major sporting events without paying sponsorship fees.  These promotions may seem like a great way to save money while capitalizing on market interest, but the penalties can offset any gains if you’re not careful.  Commonly referred to as “ambush marketing campaigns,” these promotions indirectly refer to the sports event in advertising and promotions. They may also involve instances where the “ambusher” conducts marketing activities at a location near where the event is occurring, giving the impression that the product or service being marketed is associated with the event.

Sova’s article, “Leaping the Ambush-Marketing Hurdles” which appears in a recent issue of MFM’s The Financial Manager magazine, helps media companies recognize the do’s and don’ts of ambush marketing campaigns through examples of promotions that effectively navigated through the copyright and trademark limitations.  In addition to taking advantage of Sova’s insights, you will want to consult your company’s legal counsel if you are considering a campaign tied to the upcoming Winter Olympic Games or similar sponsored event.

In fact, recent Olympics have included examples of successful ambush promotions cited in Sova’s article.  Do you remember seeing Chinese athlete Li Ning, run suspended by wires across the rafters of the Bird’s Nest Stadium as part of the opening ceremonies in Beijing last year?  In addition to his gymnastic prowess, Li is a successful entrepreneur who created the most popular shoe company in China.  Newspaper coverage of the opening ceremony featured photos of Li along with articles that described how one of the greatest Chinese gymnasts now owns one of China’s greatest shoe companies.  Although Reebok was the official sponsor, Sova notes that the exposure was arguably the greatest three minutes of free television advertising in history and says it resulted in lines of people, reaching around the block, waiting to get into one of Li’s stores the next day.

Another example of effective ambush marketing comes from the 1994 Lillehammer Olympic Games where the ads for official sponsor Visa stated that American Express cards were not accepted in the Olympic Village.  AmEx responded with an ad campaign that used the slogan “If you are traveling to Lillehammer, you will need a passport, but you don’t need a visa,” informing viewers that American Express is accepted widely throughout Norway.  The campaign paid off for AmEx, with 52% of respondents surveyed believing that American Express was an official sponsor of the Olympics, according to Televisionpoint.com, which provides research and news information.

Sova points out that it’s very importantly to note that American Express was careful not to infringe on Olympic trademarks belonging to the IOC. Its ads did not mention the Olympics, did not include Olympic logos, did not use the term “Winter Games” – and used an amusing play on the word “visa” without specifically mentioning the Visa credit card brand. 

The decision by American Express to refer to the country that the Olympics was being held in, rather than referring directly to the sporting event, is also very key, Sova says.  “If you’re conducting a contest pertaining to the Steelers, don’t use the team name, but instead refer to Pittsburgh,” he advises.

The best way to ensure you don’t use any trademarked phrases and logos of leagues or major sporting events, in Sova’s opinion, is to obtain a list of the terms that are off-limits and sidestep them completely.  “Names like ‘Super Bowl,’ ‘Super Sunday,’ ‘Final Four,’ ‘March Madness,’ ‘Winter Games,’ ‘Vancouver 2010,’ and ‘World Series’ are among protected trademarks.  They should never be used in a promotion without express authorization from the organization that controls the rights to them,” he reminds us.

A list of ambush marketing don’ts, according to Sova, would include conducting a contest that uses the term “World Series,” or broadcasting a promotion that contains unauthorized language, such as a local Ford dealership that is giving away a Mustang to the listener that most closely guesses the combined score of the NCAA March Madness championship basketball game.  “These are examples of infringing on protected trademark rights, and organizations like Major League Baseball and the NCAA would likely act quickly to issue a cease-and-desist demand, an injunction or file a law suit to shut down your promotion,” he warns.  These legal claims can be significant and involve accusations of trademark infringement; unfair competition; false advertising; misappropriation of good will, or tortious interference with contract rights, which can add up to a very costly error.

The NFL took actions like this against with a Detroit club that advertised a Super Bowl party featuring porn star Jenna Jameson, Sova noted. It also won a court case against Coors for referring to itself as “The Official Beer of NFL Players,” a designation Coors had licensed from the NFL Players Association.  He also advises that simply adding a disclaimer like “not an official sponsor of the Super Bowl” to the end of an advertisement doesn’t change the fact that the use infringes on the NFL’s intellectual property rights.

These considerations also apply to ticket giveaways.  By purchasing tickets to major sports events, the buyer agrees to abide by the terms and conditions printed on the back of the ticket itself and many tickets prohibit the use of the ticket for advertising or promotional purposes.  Even if a station lawfully purchases tickets to the event, the prohibition against using the tickets for ticket giveaways will remain.  “Ticket giveaways should only be conducted in connection with an official sponsor that has written permission from the organizing group to conduct a ticket giveaway, and if your advertiser claims to have written permission to give away tickets, protect your station by requiring proof,” he advises.

As Sova points out, sporting events that attains the status of a national or worldwide spectacle worthy of attracting corporate sponsorship fees of $100 million each, tempt local stations and their advertisers to leverage their scarce advertising and promotion budgets by launching a marketing campaign that  piggy backs off the event.  “If you decide to become involved in this sort of campaign, you need to be exceedingly careful to avoid infringing on protected marks and avoid the wrath of the governing sports organizations,” Sova counsels. 

Bankable advice like that contained in Christopher Sova’s article is one of the many benefits of MFM membership and we are grateful for the opportunity to share it with you as part of MFM’s mission to be the industry’s premiere financial management resource.

— Mary M. Collins, President & CEO, Media Financial Management Association