Combatting Ambush Marketing of Sports Events in Spain
By Ariadna Pérez, Lawyer, Statim Legal SLP, Barcelona, Spain
What is ambush marketing?
Before delving into this topic, it is necessary to define what is understood as “Ambush Marketing”.
Although this concept is not explicitly defined by our current legislation, for the purposes of this Post, we shall understand it as a promotional strategy, whereby an entity, that is not an official sponsor of an event, such as a sports tournament, engages in marketing activities aimed at creating an association between its brand and the event, or at capitalising on the visibility of the event, without the authorisation of the event organiser.
This practice does not necessarily involve the unauthorised use of copyrights or other intellectual property rights related to the event. Instead, it typically focuses on increasing brand exposure by placing the brand in proximity to the event, whether physically, through attendance at or signage near the venue, or through media channels covering the event.
The goal of ambush marketing is to leverage the extensive media coverage and public attention surrounding the event to gain high visibility at a fraction of the cost of an official sponsorship.
This harms both the event organisers and the legitimate sponsors, who have invested significantly in exclusive marketing rights associated with the event.
What can be done to combat it?
Ambush marketing is not explicitly regulated under Spanish law. However, this does not mean that it cannot be addressed or challenged under certain circumstances.
The Spanish Unfair Competition Law (Law 3/1991 dated January 10) contains in its articles 4 to 31 different forbidden practices, such as acts of Deception (article 5), Confusion (article 6), Exploitation of another’s reputation (article 12) and Illicit advertising (article 18).
1. Deception
To determine whether specific conduct can be considered deceptive, two criteria must be met:
(i) the conduct must be likely to mislead its audience; and
(ii) it must be capable of influencing or altering their economic behaviour.
Whilst ambush marketing may satisfy the first criterion, meeting the second is more challenging, as it may be difficult to prove that such a strategy has a tangible impact on the audience’s economic decisions.
2. Confusion
According to the law, any behaviour likely to cause confusion with the activities, services, or establishment of another is considered unfair. Consequently, ambush marketing may be regarded as an act of confusion, as it creates a risk of association in the minds of the audience, leading them to mistakenly believe that a commercial relationship exists between the brand and the event when, in fact, no such relationship exists.
3. Exploitation of another’s reputation
For conduct to be considered an exploitation of another’s reputation, three elements must be present:
(i) the existence of an industrial, commercial, or professional reputation acquired by an economic agent in the market;
(ii) the taking advantage of that reputation by a third party; and
(iii) the unfair nature of that advantage.
Accordingly, ambush marketing practices may be regarded as acts of exploitation, as they often involve associating a brand with events that possess significant industrial, commercial, or professional reputation, thereby seeking to benefit from that reputation without any legal entitlement.
4. Illicit advertising
Ambush marketing practices can be regarded as illicit advertising to the extent that they may constitute unfair advertising. However, when evaluating whether such strategies amount to deceptive advertising, as previously explained, it is important to recognize that, even if they are likely to mislead consumers, it is not necessarily clear that they can influence their economic behaviour.
Conclusion
Combating ambush marketing requires a case-by-case analysis, as there is no universal solution.
In other words, addressing these practices and examining the specific circumstances of each case; assessing their impact on the audience; and evaluating the particular actions undertaken.
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