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May 2020 Editorial - Defining the indefinable: Legislating for “ambush marketing”
Ambush marketing is coming of age. The term was coined in the 1980s by Jerry C Welsh while working for American Express. In its infancy, ambush marketing had many different meanings depending on whom was asked. Welsh himself defined it loosely to mean little more than an activity undertaken by a non-sponsor to take marketing supremacy from the sponsor. More recently, the International Olympic Committee described it in sweeping terms as an attempt to create an unauthorised or false association with an event thereby interfering with the legitimate contractual rights of the official marketing partners of the event. In the early years, these broad definitions did not matter too much as they were largely confined to marketing discussions.
This has now changed. Definitions of ambush marketing are finally making it into legislation. Most recently, the Scottish Parliament enacted the UEFA European Championship (Scotland) Act 2020 (ASP 1), s 12(4) which defines “ambush marketing” as “an act or series of acts intended specifically to advertise within an event zone at a prohibited time— (a) a good or service, or (b) a person who provides a good or service” with advertising being prescribed as “an activity…[that] it is a communication to the public…for the purpose of promoting an item, service, business or other concern.”
This definition is hardly new: similar wording was used in the regulations restricting advertising for the London Olympic and Paralympic Games in 2012 (SI 2011/458, 2898 and SI 2012/60) and for the Glasgow Commonwealth Games in 2014 (SSI 2013/90). Indeed, the definition in the 2020 Act is used only for the purposes of making regulations and it is restricted to activities within the event zone - commonly called ambush marketing by intrusion (and so does not apply to ambush marketing by association). Noteworthy are the reports and debates on the Scottish Parliament relating to the 2020 Act (e.g. SP Paper 612; 1 November 2019; Debate, Culture, Tourism, Europe and External Affairs Committee, 10 October 2019) which discuss ambush marketing, including detailed evidence from witnesses, but without any real exploration of how ambush marketing has been defined - yet definitions matter. Calling a promotional campaign “ambush marketing” has implications both in terms of where it can take place but also reputationally for the advertiser. A sweeping definition, with narrow exceptions, makes a very strong statement about what is, and is not, legitimate activity. While in England there is no law to prevent “ambush marketing” for EURO 2020, there is a Bill before Parliament for the Birmingham Commonwealth Games in 2022. Even though it includes no definitions, the provisions relating to ambush marketing have not even been debated so far; the limitation of commercial speech going without comment.
The British Parliaments are not alone. South Australia has gone further and created a definition in its Major Events Act 2013 for all types of ambush marketing (both intrusion and association). Its description is very broad indeed: “taking advantage of the holding and conduct of a major event to promote a person, goods or services without the written approval of the event organiser or any other activity that would suggest to a reasonable person that a person, goods or services have a sponsorship, approval or affiliation with a major event or the event organiser …without the written approval of the event organiser.”
It may well be that laws are required to prevent some (or all) ambush marketing, but it should not be done blindly. Working out what is and what is not ambush marketing is critical. The approach in Scotland is to give ambush marketing a sweeping definition to cover all advertising not just that connected to the event, necessitating a raft of exceptions to permit normal day-to-day activity; and exceptions, in the normal course of things, put the burden of proof on the local business to show they are acting lawfully.
On the other hand, in South Australia, a vague term with uncertain boundaries is used: what is “taking advantage”? And it should be noted the restriction on “taking advantage” is to catch things which do not suggest sponsorship, approval or affiliation. So, if everyone is cricket crazy in Adelaide because the Cricket World Cup is in town again, does a small newsagent promoting her shop by giving a discount to ticket holders take advantage? Surely she does. Likewise, during EURO 2020 a Big Issue seller is caught within the definition of ambush marketing as much as a major promotion by, say, Nike. Is this fair? And is it an answer that the Big Issue seller can prove she falls within the exception? Where should the burden lie – on the event organiser or on everyone else?
A broader question is: how many events need special laws? Some events (and countries) are moving away: the 2020 Tokyo Olympics (now due to take place in 2021 due to the COVID-19 pandemic) is relying on intellectual property rights and the general law alone and, in the United Kingdom, neither the Cricket World Cup 2019 nor the Rugby World Cup 2015 had any special law. Nevertheless, it may well be a case can be made that protection is needed to prevent ambush marketing when a major event comes to town, but when this happens legislators need to engage actively with the process and think about what they call or treat as illegal ambush marketing. Words really matter.