Out-Law Analysis | 18 Jun 2010 | 3:02 pm | 2 min. read
When an apparent ambush marketing stunt was rumbled, 36 young women were thrown out of a stadium and two were jailed in South Africa this week.
The women wore mini-dresses that were promotional items that came with packs of Dutch beer Bavaria, and the two Dutch women were questioned on suspicion of organising an ambush marketing stunt.
The dresses did not carry conspicuous logos, and Bavaria is providing housing and legal support to the women, though it has neither admitted nor denied that it was directly involved in the stunt.
Being seen as being responsible for having the women ejected and jailed is hardly the best PR boost for FIFA. Official beer sponsor Budweiser is also unlikely to be comfortable with the incident. So there is an argument that if FIFA's officials hadn't taken any action then the name Bavaria would not be plastered across the world's newspaper pages this week.
In reality, FIFA had no choice but to take action.
Ambush marketing is serious business. Major sponsors like Budweiser reportedly spend hundreds of millions of pounds securing exclusive rights to market themselves alongside the World Cup, and they expect not to be trumped by competitors pulling stunts.
Put yourself in the position of FIFA. Faced with the choice of acting against the perpetrators of the mini-dress trick or not it was no doubt aware of the possibility of being seen as having over-reacted when the arrests took place.
The alternative, though, was worse. Had it let the Dutch trick slide, what would have been next? Probably at this tournament and certainly at the next, ambush marketing would have taken over as companies weighed up the costs and benefits and concluded that pulling a stunt was worth a shot if the real sponsors were going to hold off taking action.
It is likely that Budweiser was not consulted before FIFA took action. FIFA's officials will be hawk-eyed, alive to any infringement of its agreements. Why? Because income for the World Cup in 2014, 2018 and beyond is at stake.
Imagine the mini-dressed women were allowed to stay. What would happen the next time FIFA tried to sell Budweiser or a rival a sponsorship package with nine digits in it? The chances are potential targets would laugh the football suits out of the meeting room. To be valuable, exclusivity needs to be enforced.
With London's Olympics just two years away, the dangers of ambush marketing are about to become more relevant than ever.
The penalties in special South African laws introduced for the World Cup are severe. Associating a trade mark with a World Cup event without FIFA's permission can land you in jail for three years.
UK penalties are not as draconian, but they could have a major impact and could leave company directors with criminal records. Breaking the Olympics Act's advertising rules could leave directors paying unlimited fines if their company stages an ambush marketing stunt.
The Olympics Act bans the use of terms including '2012', 'games', 'gold', 'silver' and bronze in combination except by those who are official sponsors of the Olympic Games and allows the Games' authorities to control advertising around the Olympic venues.
The Act creates a new right – the London Olympics association right – which can only be granted by the London Organising Committee for the Olympic Games (LOCOG). If it sees an infringement, the LOCOG would take the case to a court, which would decide the fate of those responsible.
Nobody comes out of the mini-dress stunt looking perfect, but Budweiser and FIFA have certainly made it clear that they will defend their interests when it comes to the very big business of football-associated marketing.
Olympics sponsors are likely to be just as vigorous, which is something that budding stunt-planners should keep in mind for 2012.
By John MacKenzie, a partner with Pinsent Masons, the law firm behind OUT-LAW.COM. John specialises in intellectual property disputes.