10 Aug Ambush Marketing
You must be thinking that what the above term Ambush Marketing means?
So, here’s the answer: The court observed that the phrase “Ambush Marketing” is used by marketing executives only and is different from passing off. In a passing-off action, there is an element of overt or covert deceit, whereas ambush marketing is the opportunistic commercial exploitation of the event. The marketer does not seek to suggest any connection with an event but gives his own brand or other insignia a larger exposure to the people attached to the event, without any authorization of the event organizer. In such cases there is no deception, therefore the defendant’s conduct cannot be categorized as wrongful or against the public interest. The court held that commercial advertising is commercial free speech and protected under:
ARTICLE 19 (1) OF THE INDIAN CONSTITUTION
An advertisement campaign without using the logo or mascot of the plaintiff cannot be held to be unlawful. Thus, it is for the legislature to decide how far to curtail the legitimate fair competition and freedom of speech. In India, no statutory or common law prohibits such an activity and the World Cup is not protected by any international treaty or domestic law, unlike the Olympic Games and its trademarks, which are protected under the Indian Emblems and Names (Prevention of Improper Use) Act, 1950.
Ambush marketing is considered by many as a double-edged sword, where on one end it is reflected as an opportunistic advertising strategy, but on the other, it’s considered as an unfair practice and at times infringing practice. In the words of Delhi High Court, “Ambush marketing is the opportunistic commercial exploitation of an event. The ambush marketer does not seek to suggest any connection with the event but gives his own brand or other insignia, a larger exposure to the people, attached to the event, without any authorization of the event organizer.”
Presently there aren’t any express laws or provisions in existing legal regimes to cope with ambush marketing and hence most of the cases of ambush marketing seek shelter under intellectual property rights infringement and the common law of passing off.
What do you mean by Passing Off?
This common law relief can be sought against ambush marketers in case of unregistered trademarks. In order to succeed in an action for passing off, the claimant must clear the classical trinity test where he ought to establish that:
- The claimant has goodwill;
- The defendant made a misrepresentation that is likely to deceive/confuse the public and
- The misrepresentation damages the goodwill of the claimant.
- Trademark Infringement– Infringement proceedings can be initiated against the ambusher, provided the event organizers have registered their trademark and a similar mark is being used by the unauthorized sponsor.
This remedy is more likely to be sought for unauthorized replication by a third party of a specific logo created with respect to the event. There have been instances where major sports events set forth a pre-requisite that the organizing country implements legislative measures to cope expressly with the menace of ambush marketing. In anticipation of the Cricket World Cup tournament 2003 and 2010 FIFA World Cup, a legislative measure was enacted by the South African Parliament during 2001 and 2002 which specifically dealt with ambush marketing. Also, organizers of major events such as Olympic 2000 in Australia, Olympic 2008 in China, Olympic 2012 in the U.K., have all either passed event-specific legislation or amended existing laws to contemplate protection of the official sponsors.
Coming back to the Indian perspective, there are only a few handfuls of ambush marketing cases where relief has been granted under either law of passing off or trademark or copyright. The only appropriate reference with regard to ambush marketing can be made to the case of ICC Development (International) Ltd. vs. EverGreen Station1, where although the contention was an infringement of copyright and a prima facie case of passing off, unfair competition, ambush marketing and violation of publicity rights, an injunction was granted against the defendant only on grounds of misuse of the world cup logo because there was a copyright infringement as the logo was held to be an artistic work under the Indian Copyright Act and the concept of ambush marketing was over-looked.
Amongst this lacuna of legislative measures for preventing ambush marketing, credit must be given to the International Cricket Council (ICC), which demands strict adherence to their ambush marketing clause, and clearly states that players have to stop promoting companies and products not related to the World Cup before the event begins. In light of these rules, famous Indian cricket team caption M.S. Dhoni was targeted for promoting and endorsing the brands like Sony and Aircel, which were the rivals of ICC’s official sponsors for World Cup 2011.
CELEBRITY RIGHTS LAWS, AMBUSH MARKETING, AND THE DELHI HIGH COURT (AMENDMENT) BILL 2015.
Along with the fame, comes the need for celebrities worldwide to offensively and defensively protect their valuable personal brands, emanating from their name and likeness and intellectual property rights, from being exploited from unauthorized users. As seen from the recent case involving Michael Jordan in the People’s Republic of China, IP rights can differ greatly from one IP regime to another.
- In a recent judgment, Michael Jordan, a legendary NBA basketball player, lost a case in the Beijing Municipal High People’s Court in China against Qiaodan Sports, a sportswear company that trademarked the literal Chinese translation of Jordan, and used his Chicago Bulls jersey number 23 along with a shadow-like jumping man logo to sell basketball attire. Jordan’s position was that consumers were being misled to believe that it was his brand or a product that he endorsed. Why was this case not a ‘slam dunk’ for Jordan, and if a foreign celebrity failed to trademark the translation of his/her name in India, could he/she face a similar outcome in an Indian court? Barring certain exceptions, China follows a strict first to file principle. As per this principle, the person who first registers the mark will get priority over a prior user, unless the latter is a well-known mark or has a certain influence in China due to its use. China does not provide any common law remedy for unregistered trademarks. Therefore, had Michael Jackson first registered the Mandarin transliteration of his name in China, his case would have been a near ‘slam dunk’. Unlike China, India does not follow a ‘first to file’ principle. Trademarks Act 1999 provides a common-law remedy for an unregistered trademark on the basis of prior use. The celebrity can also institute an action of passing off, if someone is misappropriating the goodwill of the former, portraying that the same is somehow connected with the said celebrity.
- What intellectual property rights does a celebrity have in protecting his or her name and likeness in India?
In India, celebrity rights can be protected via trademark law and passing off action. A celebrity can register his name under the Trademarks Act with respect to goods and services. Moreover, an action of passing off is maintainable when someone tries to misappropriate the goodwill or fame of a celebrity for selling their goods and services, portraying that the same are being endorsed by the celebrity. In the United States, in addition to intellectual property protections, many states have tort privacy laws that protect a celebrity’s name or likeness from being used for commercial gain. Are there any similar tort protections in India? In India, an individual enjoys the right to privacy under the constitutional law of the land. India does not have any specific legal provision on personality rights, nonetheless, the concepts of privacy and publicity are haltingly being molded to protect personality rights. The Indian Courts have also noted that the right of publicity has evolved from the right of privacy, which is again closely associated with the right to life and personal liberty. Hence, circumlocutory, personality rights are allied with Article 21 of the Constitution of India. Though fundamental rights are enforceable only against the State, the Courts have recognized that in the private sphere, an action would lie in law of torts for breach of privacy. Also, defamation is a well-established concept covered under both as a civil wrong and a criminal offense in India. Further, the Code of Advertising Standards Council of India, the Code for Commercial Advertising on Television, and the Standards of Practice for Radio Advertising have provisions providing that due authorization is required prior to the usage of references of an individual.
I would like to conclude by saying that, since there is no legislation in India that governs the practices of Ambush Marketing, the precedents of the Courts serve as a means of protection for the official sponsors. Also, contractual agreements for exclusive sponsorships can be entered into by the parties to safeguard interests from competitors. For instance, in 2011, Indian cricketer MS Dhoni had been asked by the International Cricket Council (ICC) to stop promoting Sony and Aircel (they were the rivals to official sponsors of the World Cup then) as it breached the ambush marketing clause.