As the FIFA Women’s World Cup 2023 comes to a close, there is no doubt that the event was a huge success for fans and sponsors alike. With an event of this magnitude, and success in Australia (of both the event itself, the Australian women’s soccer team, and women’s sports more generally), companies will be looking to capitalise off the increasing brand value, even if they do not have official sponsorship arrangements. This is commonly known as ‘ambush marketing’ and can raise real issues of intellectual property infringement. In this article, we take a look at the key issues to be aware of and the fine line between clever ambush marketing campaigns and avoiding infringement of intellectual property rights.

What is ambush marketing?

Ambush marketing involves a company leveraging off a major event, without being an official sponsor. Third parties with no official rights or licenses will try to draw a connection in the mind of the consumer and capitalise on the hype surrounding the event. For example, BrewDog’s recent ‘Proud Anti-Sponsorship of the World F*Cup’ campaign, in connection to the FIFA World Cup 2022 hosted by Qatar. BrewDog sought to leverage off the fact it was not an official sponsor by reverse engineering its marketing campaign and creating a ‘disassociation’ between the event and its beer and brewery products. While companies employing ambush marketing as a strategy will often make it clear there is no official connection with the event, this does not necessarily prevent intellectual property infringement, and the strategy is not without risk.

Key legal issues

The key legal issues associated with ambush marketing include:

  • Trade mark infringement or passing off: A trade mark registration confers exclusive rights to use a word or logo, and misuse of a third-party trade mark can lead to trade mark infringement and/or passing off. Companies should take care to avoid using trade marks that are identical or deceptively similar to registered trade mark rights. Likewise, brands without registered trade mark rights may have established goodwill and reputation in a trade mark, and any use in connection with the trade mark could be seen as ‘passing off’ as the brand under the common law. 
  • Misleading or deceptive conduct: Under Australian Consumer Law, any marketing or advertising representations that are inaccurate may constitute misleading or deceptive conduct or a false and misleading representation. For example, using certain inferences to draw a connection with the event may mislead consumers to think there is a sponsorship arrangement, where there is none.
  • Event specific legislation: Depending on the event, specific legislation such as the Olympic Insignia Protection Act 1987 (Cth) and Major Sporting Events (Indicia and Images) Protection Act 2014 (Cth), may apply to protect certain words, activate exclusion zones to prevent competitor advertising, or initiate ‘blackout’ periods when marketing material is prohibited.

Key takeaways

Ambush marketing can make a big impact, but it is not without risk. While the FIFA Women’s World Cup 2023 has come to an end, we expect to see more in this space with future sporting events in Australia. If your business has a marketing campaign and requires advice, please do not hesitate to reach out to a member of our Digital & Intellectual Property team.