Ambush marketing

Intent and techniques

Typically, ambush marketing is used to "ride off" the prominence and draw of a major event, aligning promotional activities and publicity around it, without having to pay fees to the event's organizer to be designated as an "official" sponsor in a certain product category. Ambush marketing techniques can be classified into two categories: "direct" forms of ambush marketing involve advertisers promoting themselves as being a part of or associated with an event, diluting the exposure of official sponsors and their respective campaigns—especially if they are the product of the non-sponsor's competitors, while indirect forms of ambush marketing use imagery relating to an event in advertising to evoke a mental connection with it, without specifically mentioning it.

"Predatory" forms of direct ambush marketing involve fraudulent claims by a non-sponsor that pass themselves off as being an "official" sponsor, usually by making direct references to trademarks relating to an event, but without having any official authorization from the event's organizers to identify itself as an official sponsor or use its trademarks. An advertiser may attempt to perform a publicity stunt inside the venue itself to attract attention to their brand, such as having attendees wear attire that is associated with the company. An official sponsor can also be involved in direct ambush marketing if they perform more extensive promotional activities at an event than they were originally authorized, such as distributing branded merchandise when they were only granted advertising on signage—especially if these activities compete with those of another sponsor authorized to do so.

A company may also perform direct ambush marketing by riding coattails—factually marketing their role in connection to an event or its participants. For example, a company which produces sporting equipment may advertise that they are the official supplier for a specific athlete or team. Similarly, a non-sponsor may choose to solely sponsor the event's telecast by a broadcaster, but not the event itself. The factual acknowledgment of a non-sponsor's involvement with the participants in an event by, for example, a television host or commentator, can also be considered an incidental form of coattail marketing, as it provides additional unpaid publicity to the brand.

Most forms of indirect ambush marketing involve a non-sponsor making use of imagery, themes, and values similar to what the event and campaigns from official sponsors express, either positively or negatively, and without making specific references to the event itself or its trademarks. In essence, the advertiser markets itself using content that evokes a mental association with the event, and as a result, appeals to those who are aware of the event. Advertisers may use a well-known generic nickname for the event that is not a trademark, such as "the big game".

Similarly, a non-sponsor may use "distractive" techniques to divert consumers' attention away from the actual event and its official sponsors using similarly indirect means; for example, a non-sponsor may saturate the area at or around its venue (including street vendors, billboards, and public transport) with a competing marketing presence. Such "saturation marketing" may either be indirectly related to the event, or be incidental and make no references at all. In some cases, a company may sponsor or create a similar "parallel property," designed to compete directly with a major property by evoking similar thematics.

Regulation

In response to the threats of ambush marketing and other forms of trademark infringement, organizers of major sporting events have sometimes required host countries or cities to implement special laws that, going beyond standard trademark law, provide regulations and penalties for advertisers who disseminate marketing materials that create unauthorized associations with an event by making references to specific words, concepts, and symbols. Organizers may also require a city to set up "clean zones" in and around venues, in which advertising and commerce is restricted to those that are authorized by the event's organizer—specifically, the event's official sponsors.

Similarly, a venue may be required to suspend its naming rights for the duration of the event if the venue is named for a non-sponsor, during which it is referred to under a generic name by all event-related materials and telecasts, and all signage referring to the sponsored name is obscured or removed.

Examples

The earliest example of general anti-ambush advertising legislation were passed in South Africa in 2001 in preparation for the 2003 Cricket World Cup. The law gave the Minister of Trade and Industry the ability to designate specific events as "protected," making it illegal to use the event's trademarks visually, audibly, and "in promotional activities, which in any way, directly or indirectly, is intended to be brought into association with or to allude to an event," to "derive special promotional benefit from the event," without the consent of the organizer. Prior to the 2011 Rugby World Cup, New Zealand passed the similar "Major Events Management Act," which prohibits any promotional use of words, emblems, and concepts implying association with events specifically designated as "major" by the federal government, without permission from the event's organizers. The law also provides the ability for clean zones to be established around event sites for the purposes of enforcing advertising rules and providing crowd control.

The International Olympic Committee has required host cities to enact measures to restrict commerce around venues, ensure official sponsors have access to public advertising space, "reduce and sanction" ambush marketing, and keep venues "clean" of any references to non-sponsors. The IOC has also required Olympic broadcasters to give official sponsors the right of first refusal to advertising time during its telecasts. During the 2010 Winter Olympics, hockey venue Rogers Arena (then known as General Motors Place) was renamed "Canada Hockey Place" for the duration of the Games. The United Kingdom passed the London Olympic Games and Paralympic Games Act 2006 prior to the 2012 Summer Olympics: on top of existing laws providing special protection for Olympic symbols, the act banned the use of the words "2012" and "Games" by non-sponsors, either together, or with words or concepts relating to the event, such as "Gold," "Silver," "Bronze," "Medals," "Summer," "Sponsors," or "London," to imply an association with the Games. LOCOG also announced plans to enforce these rules in the internet keyword advertising market.

Rule 40 of the Olympic Charter forbids all Olympic athletes from participating in marketing activities for companies that are not official sponsors of the Olympics, even if they have official relationships with the advertiser, during a timeframe that begins 9 days before the opening ceremony, and ends 3 days after the Games' conclusion. This includes advertising material containing "Olympic-related terms," including the current year, the host city's name, "Games," "Olympians," "Sponsors," "Medal," "Gold," "Silver," "Bronze," "Challenge," "Effort," "Performance," and "Victory".

The "credit card wars"

The first notable instances of ambush marketing occurred between the 1984 Summer Olympics, which were the first to utilize a more rigid, yet restrictive policy regarding the number of companies that could be designated as "official" sponsors, and the 1988 Summer Olympics in Seoul. In 1986, credit card company American Express—rival to official sponsor Visa Inc., began a marketing campaign in Asia promoting merchandise from a fictitious "Olympic Heritage Committee," supposedly based in Switzerland. American Express halted the campaign following complaints by the International Olympic Committee, who threatened to denounce the company's actions with ads and media events in which sports ministers and Olympic athletes from the countries involved in the campaign would cut American Express credit cards into pieces, if they did not withdraw the ads. In a follow-up, American Express released ads featuring a photo from the opening ceremony of the 1986 Asian Games held in the same city, captioned "Amex welcomes you to Seoul," which implied that it was a photo of the Olympics' opening ceremony.

These attempts by American Express to associate itself with the Olympics resulted in retaliatory advertising from Visa. In a continuation of an ongoing campaign promoting its exclusivity at certain venues and events, Visa ads ran with the tagline ‘the Olympics don’t take American Express’, which promoted that its sponsorship deal with the IOC meant that only Visa credit cards are accepted at Olympic venues and for purchasing tickets. American Express felt that Visa's advertisements were misleading, implying no other credit cards were accepted anywhere in the host city during the Olympics (such as at shops and restaurants), rather than applying only for ticket sales and at Olympic venues. Prior to the 1992 Winter Olympics and Summer Olympics, American Express aired advertisements acknowledging these facts, featuring the catchphrase "You'll need a passport, but you don't need a Visa." American Express produced a similar ad targeting Visa's exclusivity at the 1993 U.S. Open. The IOC negotiated a truce between Amex and Visa to tone down their advertisements, but encouraged Visa once Amex returned to its ambush marketing in 1994, and Amex finally conceded defeat by 1996.

Jerry Welsh, who was the manager of global marketing efforts for American Express in the 1980s, would coin the term "ambush marketing" to refer to these activities. Welsh defended Amex's practices as a corporation's duty to its shareholders after they lost out on the official Olympic sponsorship rights to Visa.

Nike

In the mid 1990s, Nike became known for several major ambush marketing schemes.

At the 1996 Summer Olympics, Nike (whose presence competed with official sponsor Reebok) set up a prominent pop-up store near the athletes' village, selling merchandise with slogans parodying those of the Olympics and attacking its values. Response to the campaign was negative and backfired, as "athletes were very proud to be at the Olympics and likely to be uncomfortable when their shoe sponsor says they have failed unless they win a gold medal". Whilst discussing Nike's ambush campaign, IOC and USOC marketing directors Michael Payne and John Krimsky got into a verbal dispute with Howard Slusher, a subordinate of Nike co-founder Phil Knight. After the IOC threatened to have athletes denounce the company, pull accreditation for its employees, and ban the display of its logos on equipment, Nike agreed to retract most of its negative material. Nike eventually served as the official sportswear supplier of the 2000 Summer Olympics on short notice after Reebok unexpectedly pulled out.

Nike also performed saturation ambushes at UEFA Euro 1996 and the 1998 FIFA World Cup, by buying advertising space in the vicinity of the host venues in order to prevent the official sponsors (Umbro and Adidas respectively) from being able to promote themselves. Nike's actions influenced the eventual adoption of "safe zone" rules, restricting advertising presences to those of official sponsors within a certain radius of an event's venue.

FIFA World Cup

During a game at the 2006 FIFA World Cup, fans were asked to remove "Leeuwenhosen"—pants with lion tails colored in the orange of the Netherlands national football team, distributed and branded by Bavaria Brewery, because they infringed on the exclusive beer sponsorship rights owned by Anheuser-Busch. Officials distributed orange-colored shorts to fans affected by the requirement. Bavaria Brewery was again accused of ambush marketing at the 2010 FIFA World Cup, when 36 female fans were ejected from a game (along with the arrest of two, later released, accused of violating the "Contravention of Merchandise Marks Act," a law passed in South Africa for the World Cup that enforced legal restrictions on marketing activities) for wearing unbranded orange miniskirts that were provided by Bavaria; Sylvie van der Vaart, wife of Dutch player Rafael van der Vaart, had modeled one of the miniskirts in an advertising campaign for the brewery. Robbie Earle was also fired from his roles as ITV Sport pundit and ambassador for England's bid for the 2018 World Cup, when it was claimed by FIFA that he had sold tickets meant for family and friends on to Bavaria.

Prior to the 2010 FIFA World Cup, South African budget airline Kulula ran an advertisement that played upon the fact that they were not an official sponsor of the tournament: it described themselves as "Unofficial National Carrier of the You-Know-What," and contained images of stadiums, balls, vuvuzelas and national flags. The ad was pulled following a complaint by FIFA, who claimed that the ads contained symbols that constituted an unauthorized association with the event when used together. The company mocked the objections in subsequent promotions: a follow-up ad deliberately replaced the items from the first ad with similarly shaped items (such as disco balls and golf tees), and proclaimed that there were other reasons to travel South Africa "than just for that thing we wouldn't dare mention." The airline also announced that it would give away free flights to anyone sharing their name with FIFA president Sepp Blatter; the offer would be redeemed for a dog named Sepp Blatter.

Olympic Games

At the 2008 Summer Olympics in Beijing, the IOC worked with the local organizing committee to develop a "robust brand-protection program"; logos of non-sponsors were covered with tape on equipment at Games facilities—a restriction that applied even to appliances, bathroom fixtures, elevators, and fire extinguishers. During the opening ceremony, former Olympic gymnast Li Ning was the final torchbearer and lit the flame at Beijing National Stadium. He is also the founder of Li-Ning, a domestic shoe company bearing his name. Although Li Ning's eponymous company was not an official sponsor of the Games, it associated itself with the event by serving as the equipment supplier for several Chinese national teams in Beijing, and through Li's status as a Chinese sports and business icon. Due to its exclusive sponsorship rights, Li wore apparel from a rival, Adidas, during the sequence. On the first trading day following the ceremony, Li-Ning's stock price experienced a 3.52% increase.

Prior to the 2012 Summer Olympics in London, the organizing committee LOCOG demanded the removal of advertisements for the betting company Paddy Power which announced that it was the official sponsor of "the largest athletics event in London this year": an egg-and-spoon race in the French village of London, Burgundy. LOCOG reversed its decision after Paddy Power threatened to take the organizers to court. When announcing the planned lawsuit, a Paddy Power spokesmen quipped that "It's a pity they didn't put the same energy in to the ticketing and security arrangements for the Games that they put into protecting their sponsorship revenue streams." Nike released a television advert tying into the Games with a similar concept, featuring footage of athletes training in other places named "London", and the tagline "Greatness doesn't only exist in SW19". Following the Games, a study by the Global Language Monitor found that several non-sponsors, including Centrica, Ericsson, Philips, and Subway, were among the brands with the highest perceived relationship between themselves and the Games.

In January 2014, prior to the 2014 Winter Olympics, clothing company The North Face was sued by the Canadian Olympic Committee (COC) for marketing a line of "villagewear" apparel that it felt implied an unauthorized association with the Games. The apparel had designs featuring the colors and symbols of countries (such as red and white with a maple leaf for Canada) and patches reading "RU 14," was described in a catalog as "[capturing] the international spirit of the Olympic Games," and several items in said catalog contained references to Sochi in their names. The COC also felt that the name "villagewear" implied a reference to the Olympic Village, accused the company of using the Olympic rings in a store sign advertising the line, and purporting to give away tickets to the Games as part of a contest—in violation of terms and conditions restricting redistribution of tickets without permission. The North Face disputed the COC's claims, arguing that it did not imply it was an official supporter of the COC, did not use any of the official branding elements of the Games, and that the COC had no right to restrict usage of national symbols that are in the public domain. The company also argued that the COC had "itself failed to adopt or use the alleged Olympic trademarks, and has never been the owner of the said marks, in that the marks have always been beneficially owned by the International Olympic Committee, not the COC." The suit went to trial in December 2014.

Prior to the 2016 Summer Olympics, Rule 40 was loosened by the IOC to allow some campaigns by non-sponsors involving athletes to occur during the Games. The policy, however, requires the submission of waivers to the IOC and the country's National Olympic Committee that describe the extent of the marketing involving athletes, the campaign must be put onto the market several months prior to the Games, and cannot use the Olympics' intellectual property or imply an association with them. Prior to these Games, the United States Olympic Committee (USOC) also issued a warning asserting that non-sponsors could not create or disseminate any content related to the Olympics on social media, including posts referencing the Games or its results, posts sourced from official accounts, or posts using official hashtags (which the USOC has claimed as trademarks).

In July 2016, the Australian Olympic Committee sued mobile provider Telstra over adverts which promoted that, as the broadcaster's "official technology partner", Telstra wireless subscribers would have free premium access to the Seven Network's digital coverage of the 2016 Summer Olympics. The offending television ad was set to a version of Peter Allen's song "I Go to Rio", which was also used as the tagline of the campaign. The AOC argued that the promotion was deceiving and could imply that Telstra was an official sponsor of the Australian Olympic team (Telstra was previously an official sponsor, but ended its partnership in 2015). Telstra defended the ads, stating that they were intended to promote its relationship with the official broadcaster, and that it would amend the ads to disclaim that the company is not an official sponsor of the AOC or any related entities. On 29 July 2016, a federal court ruled in favor of Telstra, stating that there was "no doubt" the campaign was relating to the Games without using its trademarks, but that it was "not enough for the AOC to prove that the advertisements were Olympic-themed."

NFL

The National Football League has historically been protective over unauthorized uses of its intellectual property, such as the game telecasts themselves, and most notably, its trademark for the Super Bowl—the league's championship game. To protect these properties and its official sponsors, the league has historically sent reminders and cease and desist notices to advertisers and businesses—including establishments that may be showing the game—that use references to "Super Bowl," "Super Sunday," or team names in promotional activities related to the Super Bowl. Although using part of a trademark for descriptive purposes, without implying official association, can be considered a nominative use under United States trademark law, non-sponsors typically use euphemisms such as "the Big Game" to refer to the Super Bowl in advertising to protect themselves from liability. In 2006, the NFL applied to register "The Big Game" as a trademark, but withdrew following opposition by students of Stanford University and UC Berkeley, who play in a long-running college football rivalry game also known as "the Big Game"—an event which pre-dates the Super Bowl by several decades. The NFL has also partaken in clean zone policies around Super Bowl sites to protect against saturation ambush marketing.

In 2009 and 2010, Avid Life Media produced advertisements for its extramarital and homosexual online dating services Ashley Madison and ManCrunch, that it aimed to have aired during the Super Bowl. The Ashley Madison ad featured the tagline "Who Are You Doing After the Game?," while the ManCrunch ad culminated with two male football fans kissing and dry humping each other. Both ads were rejected by the game's respective broadcasters; the Ashley Madison ad for objectionable content, and the ManCrunch ad for its unauthorized use of NFL trademarks. An Avid Life Media spokesperson, as well as the media, initially reported that the ManCrunch ad had actually been rejected because of its homosexual themes. Critics felt that the company was engaging in ambush marketing by intentionally submitting ads that would be rejected by broadcasters, and thus earn free publicity from the resulting "controversy" without having to pay for the ad time itself. The company denied this was the case, and stated that it had serious intentions to purchase the ad time if the commercials were approved.

In October 2014, the NFL fined player Colin Kaepernick for wearing pink-colored Beats headphones (in observance of National Breast Cancer Awareness Month) during a post-game press conference, violating rules that prohibit players from displaying the logos of non-sponsors during games, practices, and pre/post-game media appearances. His actions infringed the exclusive sponsorship rights of Bose Corporation, who had become an official sponsor of the NFL as of the 2014 season. In response to the fine, Kaepernick covered the Beats logo on the headphones with athletic tape during a subsequent press conference.

Minneapolis sports venues

In September 2010, the Minnesota Timberwolves basketball team were the subject of complaints by the Minnesota Twins baseball team, after the Timberwolves announced plans to install a large billboard sign for Sanford Health on the exterior of Target Center. The new sign would be prominently visible from within the Twins' home of Target Field, and compete with the team's own Mayo Clinic sponsorship. Although it is a city-owned venue, the Timberwolves had the right to sell advertising on the exterior of the arena. The Twins' president Dave St. Peter stated that "while the Twins always understood an ambush on the ballpark was possible, the sheer size of the proposed signage is shocking." The timing of the change was also criticized, as it came right before the start of the 2010 Major League Baseball postseason, which would bring national exposure to the venue and the sign. In October 2011, per an extension of Target Corporation's naming rights for the arena, the company was given control over its exterior. The Sanford Health sign was removed, and a new display featuring Target's dog mascot Bullseye (which animates to signify Twins home runs at Target Field) was put up in its place.

The Minnesota Vikings' U.S. Bank Stadium faced a similar controversy; because the Minneapolis offices of Wells Fargo, a rival to the new stadium's naming rights sponsor U.S. Bank, are located within the vicinity of the stadium, Wells Fargo agreed to only install "non-mounted," non-illuminated signage on its building, such as letters painted directly onto the roof. After the original agreement was reached, Wells Fargo had asked the team to allow the installation of "raised, illuminated lettering. mounted on beams more than a foot above the roof rather than painted on the roof as agreed upon". Such signage would be visible in overhead views of U.S. Bank Stadium (such as camera shots during event telecasts), Wells Fargo threatened to light the entire rooftops of its offices if the Vikings chose to deny the requested change. In December 2015, the Vikings sued Wells Fargo for violating the agreement, after they began to construct an illuminated sign on their rooftop. On June 23, 2016, Judge Donovan W. Frank ruled in favor of the Vikings, and ordered Wells Fargo to remove the raised, illuminated signage.

Ambushes of Apple

In October 2011, Samsung ambushed the Australian launch of Apple's iPhone 4S smartphone by setting up a pop-up store near Sydney's Apple Store. At the store, the company sold its competing Galaxy S II to the first 10 people in line daily at a discount price of $2 AUD. Samsung similarly piggybacked the launch of its successor, the iPhone 5, to promote the Galaxy S III and Galaxy Note II; the company purchased keyword advertisements for the devices on major search engines, as well as Twitter and YouTube, thus causing ads for the device to appear on searches relating to iPhone 5.

The Quebec-based home improvement chain Rona ambushed a billboard sign advertising another Apple product, the iPod Nano, by placing a banner for its paint recycling services that showed the paint from the devices in the Apple billboard above it falling into cans.

Impact

Moves to control ambush marketing at events have been met with mixed reception: ambush marketing regulations enable the event organizer to prevent competitors from impeding on a company's exclusive rights to serve as an event's sponsor, thus making their sponsorship rights more lucrative. Laws enacted to control ambush advertising practices have proven to be controversial: critics have argued that ambush advertising regulations can inhibit free expression and prevent businesses (such as restaurants, sports bars, and pubs) from even mentioning the existence of an event, and that a country's existing trademark laws can be sufficient to protect organizers' intellectual property without granting them special powers.

The American Civil Liberties Union has opposed "clean zone" policies on several occasions; prior to both Super Bowl XLVII and the 2014 Major League Baseball All-Star Game, the organization respectively sued both the cities of New Orleans and Minneapolis for enforcing clean zone laws, arguing that they were unconstitutional for banning protected speech. In response to the lawsuit, New Orleans did amend its clean zone ordinance to allow non-commercial protected speech within the clean zones. The NFL has also received criticism for exaggerating the extent of its intellectual property rights under the laws of the United States, aggressively enforcing its trademarks, and failing to take the doctrine of fair use into account.

During the lead-up to the 2012 Summer Olympics, the London Organising Committee of the Olympic and Paralympic Games (LOCOG) showed an infamously aggressive stance towards enforcing anti-ambush advertising regulations: the organizing committee's policies and the London Olympic Games and Paralympic Games Act 2006 were criticized by local politicians, along with the Chartered Institute of Marketing, for being overly broad, "draconian," and unnecessary to enforce its exclusive trademark and sponsorship rights. The press characterized the organizing committee as having a "branding police" due to several incidents surrounding the policies: an art event known as The Great Exhibition 2012 almost faced legal action from LOCOG for merely containing "2012" in its name, EasyJet was told during a photo shoot that having Sally Gunnell reprise her pose with the Union Jack from the 1992 Games would constitute an unauthorized association, and athletes were asked to report ambush advertising activities on a special website. In contrast, LOCOG allowed the restaurant chain Little Chef to continue selling its popular "Olympic Breakfast," owing to its long-standing use of the brand since 1994.

It was also argued by critics that the policies would make it unviable for smaller businesses to promote themselves using the Games, even in support of athletes, as they would need to evaluate whether their marketing materials violate the restrictions on unauthorized associations. Additionally, the architecture community strongly criticised the marketing restrictions, citing LOCOG's refusal to allow architectural firms to publicise their work on Olympic venues, including preventing the firms from entering national and international award competitions. LOCOG retained rights to all Olympic marks even after the end of the games until they were transferred to the British Olympic Association in 2013.

During the 2016 U.S. Olympic track and field trials, the apparel company Oiselle received demands by the United States Olympic Committee to remove social media posts congratulating Kate Grace—an athlete who is sponsored by Oiselle—on qualifying for the 2016 Summer Olympics, considering them to be unauthorized "Olympic-related advertising" because the photos attached to the posts depicted USOC trademarks, including the Olympic rings and the phrase "Road to Rio". Bergesen stated that future posts would remove or obscure references to these trademarks, but argued that their depiction were incidental because the offending material appeared in the venue and on the bibs worn by all athletes at the event, making it intractable to avoid depicting them in photos taken there. She also defended the postings as being news reporting on the achievements of its sponsored athletes, and not an advertisement for its products per se.