ADVERTISING IN SPORTS – DON’T GET AMBUSHED OFFSIDE

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ADVERTISING IN SPORTS – DON’T GET AMBUSHED OFFSIDE

Humans love sport – this is an inescapable, universal truth that permeates through generations, with online viewing platforms leaving few around the world without access to some form of sporting entertainment nowadays. 

It’s safe to say that Football (the non-American variety) eclipses all sports in its path when it comes to globalisation and viewership numbers – the 1.5 billion people who watched the Fédération Internationale de Football Association’s (“FIFA”) World Cup Qatar 2022™ final would certainly agree. 

With these enormous viewership numbers comes commercial opportunity – football, sponsorship, media rights, advertising and marketing are all intertwined in the modern game, where titans of industry compete for every shred of advertising time and space on offer, spending billions in the process to the exclusion of their competitors. With events such as the Netball World Cup 2023, Rugby World Cup France 2023 and ICC Men’s Cricket World Cup taking place this year, 2023, like every other year, provides commercial enterprises with unique opportunities to showcase their brands to the world, creating an amalgamation of various intellectual property (“IP”) rights that each require independent protection. 

Taking a look at the FIFA Women’s World Cup 2023™ (“the World Cup”) happening in Australia and New Zealand as an example, during the event, advertisers should take cognisance of FIFA’s IP rights (be that from a trade mark or copyright perspective), the Media and Marketing Regulations (“MMR”) for the World Cup and the FIFA World Cup IP Guidelines 2023 to ensure the marketing and advertising of their brands during the event does not encroach on FIFA’s (or its associates) official IP rights.  

FIFA has gone to great lengths to protect its rights globally by trademark and/or other forms of IP to curtail the unauthorised use of identical reproductions and/or confusingly similar variations and modifications of its official IP. Only FIFA rights holders are permitted to use FIFA’s official IP for commercial purposes. The FIFA website (https://www.fifadigitalarchive.com/welcome_old/markrequest/Common/documents/FIFA_Womens_World_Cup_Australia_and_New_Zealand_2023TM_IP_Guidelines_Version_3_0_English.pdf) provides a detailed guide on FIFA’s official IP. 

Commercial entities and advertisers not associated with the World Cup typically look to take advantage of the fan fair through what is known as Ambush Marketing. FIFA is alive to the threat Ambush Marketing may have to both itself and its commercial partners and defines Ambush Marketing in the MMR as “any attempt by an entity or individual to gain an unauthorised commercial association with the World Cup and/or FIFA, or to exploit the goodwill and publicity generated by FIFA and/or the World Cup in a manner not authorised by FIFA.”. 

Ambush marketing activities typically occur when a commercial entity/brand tries to link itself to a major event, be it through advertising or promotions using tournament designations, giving away/raffling off tickets or by implementing a creative campaign that only indirectly associates with the tournament using imagery or textual references that aim to create a link to the event. Basically, these unofficial commercial entities seek free advertising through Ambush Marketing.  

The FIFA IP Guidelines further state that the World Cup can be celebrated by everyone, without creating an unauthorised commercial association with the event, by using generic football or country-related images and/or terminology that do not incorporate any FIFA official IP. As a result, it is incumbent on commercial entities to celebrate the beautiful game rather than take advantage of it when advertising and promoting their brands during the World Cup. 

At the end of the day, while FIFA is the governing body for football around the world, it does not have a monopoly in and to the actual game of football itself and cannot bar all references to football during the World Cup.  

With the Rugby and Cricket World Cups just around the corner, similar considerations will apply during these events. Commercial entities need to remain cautious to not encroach on third-party IP rights nor contravene advertising laws and regulations, such as the South African Advertising Regulatory Board’s Code of Advertising Practice when advertising and promoting their brands during these events. KISCH IP is well-placed to assist with any commercial advertising needs in this regard. 

Michael Marki

Candidate Attorney
Trade Mark Department
Email michaelm@kisch-ip.com
Tel +27 11 324 3036

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