Ambush marketing Brazilian-style: a guest post

In Brazil today – World Cup Brazil – you can find some quite revealing sights (says David Serras Pereira, a trainee lawyer and IP Consultant with GCF IP Consultants, and author of this guest post) without having to take a ride to Ipanema beach. In Brazil’s game against Cameroon on 23 June, everyone could see Neymar’s Blue Man sunga (one of the swim suit styles currently available in Brazil) during the game. Considering that Neymar is a pretty fit guy and that the weather in Brazil is quite hot, the reader is surely wondering: what the heck is this article about? It’s about how an image posted on Facebook – that of Neymar having removed his football shirt – achieved a perhaps amusing but always interesting (to trade mark practitioners) result: ambush marketing.

Ambush marketing is mainly focused on drawing the attention of consumers from one brand or trade mark to another. It occurs, for example, in situations in which enterprises employ an advertising strategy where they catch a ride from a widespread and widely-seen event and advertise on it, without paying any sponsorship fee. According to Businessdictionary.com:

“A marketing technique in which advertisers work to connect their product with a particular event in the minds of potential customers, without having to pay sponsorship expenses for the event. An example of ambush marketing might involve selling music merchandise just outside the grounds of a concert without the consent or awareness of the concert promoters, relying on association with the concert to drive sales.”

Events like the World Cup have huge sponsors paying enormous amounts of money to benefit from advertising exclusivity. Their organisers therefore normally demand the creation by the host nation of a regime for creating and enforcing such intellectual property rights, usually trade marks and designs, as are needed for the purpose. Legislative bodies are effectively compelled to approve laws banning not only the unauthorized use of the event’s symbols and words, but also prohibiting athletes and teams from making references to unauthorized advertisers.

Obviously, if companies like McDonald’s are willing to offer, for an eight-year Olympic sponsorship, close to US$200 million, there is a clear expectation that this investment will be protected. Regarding the FIFA World Cup 2014, according to Forbes World Cup Soccer: “770 Billion Minutes of Attention” article:

“FIFA has the potential to generate $23 billion in revenues from tv ads, billboards, and sponsorships in a month”.

FIFA World Cup 2014-related activities are bound by the World Cup Law (Brazilian law n.º 12663) which has some remarkable provisions stating, for instance, that the Brazilian IP Office must accomplish special registration procedures and deadlines regarding FIFA’s trade mark applications until December 2014, or that – and this is the provision of utmost importance:

“Ambush marketing by intrusion: Article 33 - To expose trade marks, businesses, establishments, products, services or to practice promotional activity not authorized by FIFA or by person appointed by FIFA, attracting in any way the public attention in the Official Venues of Events, with the purpose of obtaining marketing or economic advantage: Penalty - detention, from three months to one year, and fine.”

If you key “FIFA” into a search engine you will be forwarded to FIFA’s website, where you can find FIFA’s partners, World Cup official sponsors and World Cup national supporters. Only these three categories are allowed to advertise within FIFA World Cup 2014’s specific context and to use FIFA’s official trade marks. Further, on FIFA’s website you will find 2014 FIFA World Cup Brazil™ FIFA Public Guidelines for use of FIFA’s Official Marks, an enlightening guide with simple images which are intended to assist stupid people to understand infringement situations, for instance, where a reference to a protected official symbol is used in an informational context without advertising purposes (like the unauthorised reproduction of the adjoining image here).

To return to Neymar and the case of Blue Man: Blue Man is a Brazilian casual/beach clothing trade mark, launched in 1972. It is quite well known in the Brazilian market, particularly in Rio de Janeiro. According to this company’s communication department, a model of their Copa Tie Dye sunga was offered, before the World Cup, to each of the Canarinhas (“female canaries” – the Brazilian Ladies’ Football Team).

Blue Man is not one of the entities referred to above as being allowed to appear as a FIFA World Cup 2014 authorized advertiser or as being allowed to use that event as an advertising billboard -- but it did, thanks to Neymar lifting his up shirt, showing the world that he was wearing a Blue Man sunga and thereby emplacing that image on the company’s Facebook and Instagram webpages. FIFA accused Blue Man of ambush marketing and, on 30 June, Blue Man received FIFA’s extrajudicial interpellation [Merpel loves the term "extrajudicial interpellation" but has never seen or heard it before: can readers explain what it means?]. In this context it seems appropriate to quote the recommendation of INTA’s Emerging Issue Committee of 10 November 2010 in that part concerning criminal provisions as a consequence of ambush marketing:

“Ambush marketing activities are commercial activities. Such activities involve the infringement of licensed rights, unfair competition methods, unfair advertising practices and the like. The damages caused are economic and reputational. Therefore, it is appropriate to provide for the same types of civil remedies allowed in these types of causes of action, such as injunctions against continued breaches or monetary damages. Imposing criminal penalties, such as imprisonment, for ambush marketing violations gives event organizers and sponsors an inordinate amount of leverage against potential violators, by threatening their very freedom. Criminal penalties for ambush marketing activities are disproportionate and inappropriate under these circumstances.”

May we conclude that you should watch your behaviour -- so that others shouldn't be arrested on account of it?