Authors
Natalie Hickey  
Partner

Peter Selvay  
Solicitor

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Natalie Hickey  
Partner
T +61 3 9643 4156

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Sydney
Scott Bouvier  
Maurice Gonsalves  
Kim O'Connell  
Katrina Rathie  

Melbourne
Robert Cooper  
Cheng Lim  
Wayne McMaster  

Brisbane
John Swinson  

Canberra
Adam Bartlett  

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What is ambush marketing?

Ambush marketing is an attempt by a third party to create an association with an event without permission. This can deprive official sponsors and suppliers of public recognition, weakening their commercial investment.

Ambush marketers are usually creative. GMH gave away a “Golden Holden” to every gold medal winner at the 1992 Barcelona Olympics even though Toyota was the official Australian sponsor. Likewise, people thought Qantas, not Ansett, was the official airline sponsor of the 2000 Sydney Olympics because of Qantas television advertisements involving choirs on the steps of the Sydney Opera House.

Official sponsors need to be able to prevent competitors from engaging in ambush marketing.

Does the law protect sponsorship rights?

In Australia, any marketing activity by a corporation falsely suggesting the existence of a sponsorship arrangement or affiliation between the marketer and a public event may constitute misleading and deceptive conduct in breach of sections 52 and 53 of the Trade Practices Act 1974 (Cth).

Further, Australia has broken new ground with event specific legislation. It was enacted to protect the rights of the administrators and official sponsors of the Sydney 2000 Olympic Games and, more recently, the Melbourne 2006 Commonwealth Games. Such legislation specifies prohibited conduct, for example: counterfeiting, aerial advertising, the distribution of pamphlets at or near event venues, advertising on boats, or the use of official insignia or indicia.

How can an official sponsor protect its rights?

A sponsor can take proactive steps to protect the exclusivity of its official rights.

The sponsorship agreement should itself contemplate ambush marketing and the circumstances in which the governing body will help the official sponsor (eg by confiscating the marketing materials of competitors from venues).

Once the event is imminent, there should be close communication between the official sponsor and the governing body to ensure there is a mutual understanding about what constitutes ambush marketing and how it can be dealt with swiftly.

It is important to obtain first tier television advertising rights. Many ambush marketers will obtain such rights so they can convey some official role even where none exists (eg “This broadcast has been brought to you by ‘X’”).

The key is to be able to act quickly because the event is of such a short duration. Therefore internal processes need to be established. Template letters of demand should be completed in advance as should the paperwork for potential court proceedings. One option, designed to act as a deterrent, is to forewarn competitors that the official sponsor will immediately act to protect its rights should ambush marketing transpire.

This article was published in the Australian Corporate Lawyers Association Update May 2006.