Ambush Marketing

There is word on the wire from the World Cup watch that several Dutch women have been arrested for engaging in a scantily clad “ambush campaign” to promote a Dutch beer at the games in South Africa.  And of course, as this firm officially supports the Oranje and all things Dutch (GO ENGLAND!), this is of particular interest to us.  Or more to the point, as we are nerdishly interested in trade-mark news around the world, this is of particular interest to us (GO ENGLAND!).


The offense in question is an offense because the games have licensed Budweiser as the official beer of the 2010 World Cup.  Part of that license agreement likely has some very explicit wording about the depiction of unlicensed competitor’s brands during the games.  So much so, that in some reported instances (at prior World Cup events) fans have stripped down to their (undoubtedly orange) skivvies after having been asked to remove their (ahem) branded lederhosen.


This may seem extreme, but when you consider the worldwide viewership that the event brings, even an incidental glimpse of a brand name or trade-mark may have exposure to hundreds of millions of consumers in dozens of markets.  As such, the organizers take these things very seriously.


This is a great example about the obligations that rights-holders bear.  Although when most businesses think about their trade-marks, they think about the rights they have, not enough time and energy is spent thinking about the obligations that come along with those rights.


First and foremost of course is the obligation to maintain the distinctiveness of the brand.  This is trade-mark law 101.  If you want to protect your right to restrict others from encroaching on your brand, then you need to keep an eye on what’s going on in the marketplace and make sure that your distinct brand stays distinct.  For some rights owners this means engaging the services of professionals who conduct regular searches through industry sources, public listings, the internet, government registries and various other sources to make sure that no one is stepping on your brand, while for others it means signing up for some well thought-out Google alerts and keeping an eye on the industry media.


But the World Cup case (GO ENGLAND!) highlights a secondary level of obligations – that of maintaining the integrity of the use of your trade-mark.  Whether you are entering into broad licensing agreements that will give your marks wide coverage, or if you use your marks in a limited capacity, you need to ensure that your brand is enjoying the exclusivity granted to it.  License agreements should be well drafted and give a wide berth to your mark and licensees need to be strictly monitored for compliance.  Even your own use must be well thought out and regularly assessed. 


Are your marks dominant in representing your products or services?  Are other brands capitalizing on your marketing efforts?  Are other brands infringing on your marketing venues?  Are you the subject of a dastardly ambush marketing campaign by cute Dutch women, who in addition to flouting international trade-mark conventions, support a team who are unlikely to progress past the Group of 16?


If these issues are new to you or if you have any questions about your business branding or your trade-marks portfolio, please give me a call.  And GO ENGLAND!


Scott R. Young