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An analysis of its threat to sports rights holders and the efficacy of past, present and proposed anti-infringement programmes.

Summary

1. The first chapter of the presentation will outline the scope of the project and lay the foundation of the global sports business industry. Chapter 2 introduces the concept of sports sponsorship as a central feature of the commerce of sport and a major income stream for event organisers, who have a vested interest in protecting their sponsors' investments. Additionally, the chapter will outline who owns sports rights and why ambush marketing is a threat to these rights owners. Chapter 3 addresses the theme of event bidding and will highlight that the demand for protective legislation has virtually become an automatic element in bidding to host major sports events, which themselves carry high commercial stakes. In Chapter 4, there will be an analysis of whether the implementation of special legislation to protect against ambushes of sporting events is necessary and justifiable. Furthermore, there will be an assessment of the legality of such legislation generally, with a view to discerning the enforceability of relevant provisions.

2. Chapter 5 follows with an examination of the legal landscape of two of the major upcoming sporting spectacles, namely, the 2010 FIFA (1) World Cup in South Africa and the 2012 Summer Olympics in London, England. The discussion herein will concentrate on the legal framework being established to regulate ambush marketing in those countries in anticipation of the approaching events. Key issues raised in Chapter 4 will be applied to the South African and English experiences. Chapter 6 juxtaposes the wide-ranging opinions held in judicial and academic circles as they relate not only to what activities constitute ambush marketing, but also to the lawfulness of these so-called "guerilla" marketing practices.

3. Chapter 7 closes this presentation, wherein it will be submitted that the fight against ambush marketing has had limited success in spite of the growing emphasis on using proactive measures to safeguard commercial interests attached to major sporting events. It will also be contended that the use of statutory intervention as an anti-infringement weapon is both necessary and reasonably justifiable, but has often been accompanied by overzealous implementation, disproportionate restrictions and unclear legislative provisions. Specific recommendations will be made to address the concerns summarised in this closing chapter.

Chapter One - Introduction

A. Background: The Booming Business of Sport

"... an estimated three billion people watched the spectacular opening ceremony of the 2008 Beijing Olympic Summer Games; and the TV rights to English FA Premier League for the three seasons, 2007-2010, have been sold by auction for a staggering GBP 1.7 billion." (2)

1.1 The global sporting industry has witnessed tremendous growth over the last two decades as it relates to spectator interest, participation and television viewership. However, it is probably in the realm of sports business that the most phenomenal growth has taken place. As confirmed by Blackshaw's observations above, sport as "big business" is an accepted reality, bringing with it tremendous incomeearning potential and at the same time vulnerability to attack from commercial predators. Sports governing bodies, especially at the international level, have depended on sponsorship, media rights, merchandising and ticket sales as their main sources of revenue. In mid-December 2009, Richard Carrion (3) indicated that the International Olympic Committee (IOC) expected to amass over $2 billion for the United States (US) television rights for the 2014 and 2016 Winter and Summer Olympics. (4) England 2018 FIFA World Cup bid chief executive, Andy Anson, also recently confirmed that the [pounds sterling]15.5 million fundraising target set by the Bid Committee was close to realisation. (5) These types of figures are now commonplace in sports marketing circles and confirm the magnitude of sports business globally.

1.2 Ambush marketing has the practical effect of compromising this very potential for sports event organisers to generate revenue, especially through sponsors' contributions. London Organising Committee of the Olympic Games (LOCOG) Brand Protection Manager, Alex Kelham, succinctly observes that ambush marketing "fundamentally undermines the key principle of sponsorship" which is exclusivity (6). When exclusivity is compromised the magnetic appeal of sports sponsorship loses much of its effect and the ramifications can be telling. Legal commentators like Lewis and Taylor add that "by offering sponsors exclusivity, a rights owner can sell fewer but higher value exclusive packages and thereby raise more sponsorship income overall. (7)" Few will dispute the valuable role played by sponsors in funding and delivering world-class sporting events. Likewise, not many would contest that rights owners who seek to produce stellar sporting spectacles, face the reality of ambush marketing with much chagrin.

B. Aim And Scope of This Paper

1.3 It is the goal of this paper to examine the practice of ambush marketing and to assess the threat that it poses to sports rights owners. The paper will analyse the legality of ambush marketing, and explore what tools are available to event organisers and their commercial partners to prohibit and/or regulate the practice. The efficacy of these protective measures will also be addressed as will and comparative jurisprudential analyses will be made across various jurisdictions.

1.4 The treatise will focus primarily on sporting events during the last 25 years, from 1984 to 2009, with a brief look at major events in the upcoming decade as well. It will be discovered during this presentation that 1984 was a turning point in the evolution of sports business, especially in the Olympic Movement. Since then, sponsorship, marketing and brand enhancement in sport have undergone a significant transformation. Where convenient, this study will be a chronological one assessed in three phases, while on other occasions the breakdown will be according to event or jurisdiction. The time periods to be considered are as follows:

1. Phase 1: 1984-1999

2. Phase 2: 2000-2009

3. Phase 3: 2010-2019

1.5 Due to their sheer magnitude, the Olympic Games and the FIFA World Cup will dominate this paper. However, other events like the International Rugby Board's (IRB) World Cup, the International Cricket Council's (ICC) World Cup and the Commonwealth Games (8) have grown in stature, popularity and commercial viability and as such they will receive due attention.

1.6 The hosting of the aforementioned events in today's commercial environment brings with it a complex matrix of rights that must be clearly articulated and carefully navigated. The breadth of the sports business industry has made it incumbent upon stakeholders to understand the rights landscape in which they find themselves. (9) Verow refers to this landscape as "the complete pattern and picture of the relevant rights that surround a major event, team, league or personality." (10) His admonition to comprehend the full spectrum of commercial rights is opportune, as a failure to do so can create a contractual conundrum that in the past has led to many disputes. It is therefore prudent to understand not only what rights are at stake in the business of sport, but also who the true rights owners are.

1.7 In the next chapter, the concepts of sponsorship and sports rights will be introduced as will the substantive theme of ambush marketing.

Chapter Two - Defining Sponsorship, Sports Rights and Ambush Marketing

A. Introducing Sponsorship

"For many brand owners-such as Coca-Cola, Shell, Gillette and Vodafone-sports sponsorship has been pivotal in their marketing communication campaigns and provided these very different brand owners with a global brand communication platform." (11)

2.1 Kolah's description of sports sponsorship as "pivotal" is apposite. The practice of sponsoring events, teams and individuals has cemented its place as a trump card in many marketing campaigns today. Although the recent Tiger Woods' debacle has been a sobering reminder of the need for morality clauses in endorsement agreements and perhaps "reputational risk" insurance policies (12) as proposed by Stern (13), the appeal of sports sponsorship is still very strong.

2.2 The European Sponsorship Association (ESA) views sponsorship "as a cost-effective marketing tool" (14) adding that "it represents an average 17% of all marketing expenditure." (15) In early 2009, the ESA went as far challenging taxpayers to "understand the power of sports sponsorship" (16) even in the context of a global economic downturn. Moore agrees that sports sponsorship "can be a highly lucrative investment," (17) therefore confirming the indubitable primacy given to sponsorship as a revenue stream.

2.3 The magnetism of this marketing tool has been attributed to multiple factors including its provision of a "clutter free platform (18)" where competitor traffic is markedly reduced. The myriad avenues through which sponsors can associate with valuable sports properties is equally attractive, ranging from naming rights deals to broadcast, team and individual sponsorship. Innovative sponsors, like Sony Ericsson, are also taking advantage of new media platforms and social networking opportunities to enhance brand awareness. (19) Ericsson's parent company, Sony, has a US$300million tier-one sponsorship agreement with FIFA (20), which goes a far way in promoting its own image and reputation among consumers. For FIFA, such investments are worthy of strong legal protection if the value of future football-associated rights is to remain high.

B. Sports Rights

"The first and most fundamental point is that English law does not recognise the existence of proprietary rights in a sports event per se." (21)

2.4 Prima facie, this principle appears unorthodox. Becker observes that in British Commonwealth countries like the United Kingdom, Australia, New Zealand, Canada and South Africa, plus in other nations like Germany, Switzerland, Sweden and Japan, an independent proprietary right in an event is not recognised. (22) The Australian authority of Victoria Park Racing (23) has been identified as the leading source from which the abovementioned legal proposition is gleaned. Latham CJ propounded that "a 'spectacle' cannot be 'owned' in any sense of the word." (24) The plaintiff, who operated a race course, sought to prevent proprietors of neighbouring property from broadcasting races to third parties, but its attempt to invoke a quasi-property right failed. The Sport and General Press decision ("Our Dogs" case) (25) was cited in Victoria Park as establishing that a plaintiff would have to rely on contractual rights if he desired to exclude another from taking photographs at an event he organised. The Court of Appeal agreed with Justice Horridge that the plaintiffs had "no right of property" and therefore no cause of action. (26)

2.5 Notwithstanding this, it is also accepted that in practical terms, sports rights do exist. Legal commentators hold the view that these rights are derived from a combination of principles arising from property, contract, tort and intellectual property law. (27) Real property law offers rights of access to the event venue, whether that venue is owned by the event organiser or a venue hire agreement has been signed. Contract law allows the event organiser, through ticketing conditions, to control the volume and conduct of attendants. This would have been the preferred route for the plaintiffs in Our Dogs. The law of tort covers the wide spectrum of civil wrongs and involuntary obligations (28) that offers remedies against breaches. Intellectual property law, especially trade mark law, creates an avenue for the event owner to protect and exploit intellectual property rights, including logos, mascots and event marks in general.

2.6 It is therefore submitted that although the establishment of sports rights under English law is somewhat complex, there are nevertheless valuable rights to be owned in today's sporting context. Similarly, the question of the bona fide owner of these rights is sometimes a vexed one. Kobel's view that the entities "who created the reputation and who can claim rights over the values associated with the Olympic Games or the World Cup (29)" are the IOC and FIFA reflects the reality and practice of rights ownership. Ultimately, this matter has been decided in favour of event organisers, who are usually influential sports governing bodies controlling their respective sports on the national and international levels. Hence, today's major sports rights holders include the said IOC and FIFA in addition to UEFA (30), the ICC, the IRB and the IAAF (31).

2.7 The rights associated with the events organised by the above entities carry unquestionable value financially. The corollary of owning valuable rights is the desire and need to safeguard them from anything that may diminish their worth. Ambush marketing is seen as one of the biggest threats to lucrative sports rights.

C. Defining Ambush Marketing

"Ambush marketing is an amorphous concept" (32)

2.8 The plethora of definitions for 'ambush marketing' lends credence to Johnson's concise analysis. Burton and Chadwick state that it "is a form of strategic marketing which is designed to capitalize upon the awareness, attention, goodwill, and other benefits generated by having an association with an event or property without an official or direct connection to that event or property." (33) The use of the term 'strategic' in this definition suggests planning and forethought on the ambusher's part. Welsh defines it as "a name given to competitive assaults on illconceived and poorly implemented sponsorships." (34) This definition addresses the conduct of both parties. The actions of the ambusher represent an assault on sponsors. At the same time, sponsors are seen as leaving lacunae in their marketing strategy making them partially blameworthy for the ambushes to which they are subject. Lewis and Taylor concur noting that the "activity is often carefully planned to take advantage of real or apparent loopholes in the legal protection available ..." (35) A Swiss economic report (36) describes ambush marketing as "the behavior of an advertising party not authorised by the event organizer which consciously tries to establish a link to the event in order to take advantage without having made a contribution to it." (37) This report portrays the ambusher's conduct as calculated and aimed at achieving free commercial gain. The IOC says that ambush marketing is "any attempt by an individual or an entity to create an unauthorized or false association (whether or not commercial) with the Olympic Games, the Olympic Movement, the IOC, the National Olympic Committee of the Host Country or the Organizing Committee of Olympic Games ("OCOG") thereby interfering with the legitimate contractual rights of official marketing partners of the Olympic Games" (38) The IOC's broad definition reflects an understandable preoccupation with protecting commercial interests.

2.9 These definitions and others have a common thread: unauthorised association. In fact, "ambush by association" is one of two distinct categories of ambush marketing. Becker notes that ambush marketing by association occurs "where ambushers attempt to associate themselves to the event in some way" while ambush marketing by intrusion happens "where ambushers attempt to piggyback on spectator and media exposure in relation to the event." (39) Becker's distinction presents only a negligible difference between association and intrusion ambush. Morgan's analysis is more helpful as he defines association ambush as occurring "where the advertiser misleads the public into thinking that the ambusher is an authorised partner ..." whereas intrusion ambush seeks unauthorised brand exposure "in the vicinity of an event." (40) In Morgan's assessment, association ambush attempts to deceive and therefore has common features with the tort of passing off. Intrusion ambush, though not limited to this, has as a central feature activity that occurs close to the event venue.

2.10 Ambush by association is a common occurrence when an entity sponsors the broadcast of the event, although it is not an official event partner. This occurred in 1984 when Kodak sponsored the ABC television broadcasts of the Los Angeles Olympics, although the worldwide sponsor was Fuji. (41) In like manner, fans mistook Sony to be an official sponsor of the 1991 World Rugby football Cup because of its television sponsorship of that event (42). Ambush by intrusion was evident at the 1996 Atlanta Olympics where Nike, a non-sponsor, bought billboards in and around the Games' venues. (43) Reebok was the official footwear sponsor of those Games. Nike also ambushed the 1999 Rugby World Cup by placing a huge Nike banner over a car park near the Millenium Stadium in Cardiff, Wales. (44)

2.11 Notably not everyone sees ambush marketing as negative, wrong or illegal. Also called "parasitic marketing" or "guerilla marketing," some see the practice as creative, innovative and clever. Such feedback was given when Great Britain's Linford Christie appeared for a media interview in conspicuous Puma contact lenses at the 1996 Atlanta Olympics. Again, Reebok was the victim of a strategic ambush from a rival footwear manufacturer.

2.12 Morgan highlights the viewpoint of the opponents of the practice, noting that the "major argument against ambush marketing is that it reduces the commercial appeal of events which are ambushed." (45) This is understandable from the viewpoint of sponsors who have paid for and expect exclusivity in their product or service category. For sponsors, ambush marketing damages the commercial relationship between themselves and the event organiser. The prospect of being ambushed causes sponsors to question the prudence of large investments if others can get commercial leverage without paying. This pursuit of free rights of association exploded in the 1980's.

D. Ambush Marketing: Its Origin and Its Threat

2.13 The term "ambush marketing" was reputedly coined by Jerry Welsh while he was working at American Express. (46) He holds the view that the "roots of Ambush Marketing can be found in several phenomena typical of modern sponsorships." (47) Among these phenomena are escalating prices for exclusive sponsorships and increasing levels of marketing competition. (48) Johnson observes that "the rise of ambush marketing is directly related to the media attention given to sports events." (49) Indeed, it was a sport event, the 1984 Los Angeles Olympics, that was the catalyst for the ambush marketing movement. The commercial environment at that time was relaxed enabling almost any interested entity to associate itself with the Olympics. In fact, the 1976 Montreal Summer Olympics reportedly had 628 sponsors attached to it. (50)

2.14 Former IOC head, Juan Antonio Samaranch, is credited with changing the face of the Olympic Games by conceptualising 'global sponsorship and broadcasting rights.' (51) Additionally, President of the Los Angeles Games Organizing Committee, Peter Ueberroth, together with Samaranch introduced the concept of exclusivity into the sponsorship framework. With sponsor exclusivity now a reality, competitors who were not accorded sponsorship rights had to find alternative means of associating with the Olympics. It is in this context that ambush marketing was conceived. (52)

2.15 Whitehead raises a concern shared by others (53) that if "a sponsor perceives that it is not getting value because of dilution of its visibility due to excessive ambush marketing it will undoubtedly consider not sponsoring the event in question in future." (54) Herein resides a core problem with the practice. Kobel, however, expresses the view that any loss in sports revenues due to ambush marketing is only hypothetical since the "sponsorship attribution process usually consists in a competitive bid system resulting in optimized prices and revenues." (55) Even if he were statistically correct, that provides little reassurance to those entities whose marketing tactics often involve voluminous monetary investments over lengthy periods.

2.16 With such high stakes, many financial and legal consequences stand to follow. Evidently, the line between what is lawful and what is not can easily get blurred in the context of competing interests and juridical complexities. Indeed, difficult questions have been raised regarding which activities are illicit and which ones comply with legal requirements. It appears that the answer to some of those questions depends on the country in which the ambushing activity occurs. This matter will be more closely examined in Chapter 6.

2.17 Whatever the legal status of ambush marketing may be, nations hopeful of hosting sporting events must be proactive. The next chapter, with an emphasis on Olympic bidding, will look at the background to a host nation being awarded a major sporting event and how event organisers plan in advance to regulate or eliminate ambush marketing.

Chapter Three - The Bidding Process and the Call to Implement Protective Legislation

A. The Appeal of Major Event Bidding

"The world of major sporting events continues to evolve at a very fast pace. One of the most significant changes witnessed over recent months has been the recognition by many cities around the world that major events can be a new and important 'route to market.' In other words they see the global appeal that major events offer as an important part of a city's strategy to raise its profile on the world stage." (56)

3.1 Mann's contextual framework for major event bidding is helpful. Governments worldwide have come to appreciate the benefits associated with event hosting, both within and outside the sports sector. Mann adds that "place branding" is essential for countries seeking to increase their share in the tourism, commerce and finance markets. (57) It is this commercial element that has changed the veneer of modern sport and that has made bidding for major events a worthy pursuit. Brands matched with major sporting are commercially vogue because of their economic and marketing potential. Protecting these brands must occur even before the right to host the event is won.

3.2 It is axiomatic that the Olympic Games and the FIFA World Cup are the two most high profile sporting spectacles. It is also now common practice for bidding nations to give the IOC and FIFA undertakings that brand protection will play a central role in hosting the Olympics and the World Cup respectively. Divergence only occurs in the methods used for such protection. Recent trends suggest, though, that legislative intervention has become the regular prelude to event hosting and that various factors influence the anti-infringement measures.

B. Policies Underpinning the Fight against Ambush Marketing

3.3 Gardiner identifies a simple and understandable motivation behind ambush marketing protective measures noting that "sponsors do not get value for the considerable sums they have expended on the particular sponsorship" often making them irate. (58) The starting point, then, is the protection of sponsors' investments, an economics-based factor.

3.4 Such motivation cannot be trivialised in light of the vast contributions in cash and kind made by sports sponsors. The loyalty shown by event organisers to their commercial partners is premised on the understanding that these stakeholders' investments are critical to the future of successful sports administration, management and governance. Kelham identifies the centrality of strong contractual relationships which straddle various echelons of the commercial ladder. (59) In the Olympic context, she highlights the interrelationship between the IOC, IPC (60) and the host city as it relates to observing both the Olympic Charter and the extensive provisions of the Host City Contract (61).

3.5 Social and cultural considerations can overlap with the commercial ones depending on the status of host nation. This was prevalent during Cricket World Cup, West Indies 2007, hosted by nine Caribbean countries. The efforts to have both a safe and commercially 'clean' event ultimately led to a sporting spectacle robbed of atmosphere and vitality. Confused cricket fans at warm-up matches were compelled to remove T-shirts with non-sponsor branding in order to protect the commercial rights of event partners such as Hero Honda, LG and Pepsi. This was reminiscent of the Germany 2006 World Cup Bavaria beer ambush where supporters of the Dutch team were directed to remove their orange lederhosen which displayed Bavaria branding. The removal was commanded because the official beer of that World Cup was Budweiser.

3.6 What distinguished the Caribbean experience, though, was its inexperience as a hosting region which resulted in some timidity in imposing cultural motivations on the economic ones. That region is inherently festive, a feature that has characterised the way cricket is played and the atmosphere created by the crowds. The generally held view after the event was that ICC policy was given primacy over spectator passion raising questions about whether the enactment of sport-specific legislation, generally, is done in a vacuum, oblivious to other interests and third party concerns.

3.7 Indeed, the passing of the legislation in the Caribbean gave effect to many of the objectives stated in the policy considerations for the implementation of the ICC Cricket World Cup West Indies 2007 Bill, 2006 including the protection of commercial rights, the control of ambush marketing and the protection of CWC marks, indicia and images. It appears, then, that there are times when it is appropriate for host nations to insist that the overall 'good of the game' must entail a multifaceted approach.

3.8 Equally, the role of political motivation cannot be underestimated as the award of the 2008 Summer Olympics to Beijing, China indicated. Blackshaw noted the "mixed reaction" to China "in light of a poor human rights record" (62) but also commended the IOC for preferring engagement to ostracism. The socioeconomic success of the Games appears to have justified a political gamble taken by the IOC.

3.9 The surprising Beijing choice was compounded by China's poor brand protection record which led the BP Council (63) to ask "what happens when the world's biggest opportunity for merchandising revenue meets the world's counterfeiting capital?" (64) There was nothing in China's history of IP protection to inspire confidence that it would protect the Olympic brand. Yet, it was an opportune time for China to prove detractors wrong, by delivering a world-class event while leading the anti-ambush charge when it mattered most. It can be reasonably inferred that China's motivation therein was more political than economic.

3.10 Evidently, the call for anti-infringement legislation has multiple roots. The evidence of event hosting today suggests that those roots are only going to become more firmly established with the passage of time.

C. Legislation Demanded

"The 1OC, as early as in the phase of bidding for the Olympic Games, requires a guarantee from Candidate Cities, confirming that prior to the commencement of the Olympic Games, legislation will be passed in the Host Country which is necessary to effectively reduce and sanction ambush marketing. ..." (65) [Emphasis added]

3.11 The IOC's requirement is indicative of its awareness of the threat of ambush marketing to the Olympic commercial programme and that of its event sponsors and partners. The IOC's goals are to reduce the practice of ambush marketing, punish offenders and control the extent of commercial activity taking place in and around Olympic venues. The brand protection measures of bidding nations must mirror those objectives. Additionally the Organising Committee "must study existing laws, identify those areas where additional legislation is needed to fulfill the IOC's requirements and work to develop and gain approval" (66) for different types of legislation that would protect Olympic intellectual property (IP) rights, control Games operations and combat ambush marketing practices.

3.12 The IOC's mandate, while clearly defined appears self-contradictory. On one hand, a guarantee must be given that legislation will be passed. The inference here is that some new or additional law must be passed to regulate ambush marketing. Yet, this requirement is followed by the instruction to "study existing laws" and discern "where additional legislation is needed." That suggests the existing legal mechanisms may suffice, negating the need for further legislative guarantees. It is submitted that the latter instruction should prevail over the former as it promotes careful consideration of laws before there is an overzealous and premature implementation of new laws.

3.13 The question then begs: is it fair for a country with world-class facilities, a strong sporting history, financial support, an efficient transportation system, five-star hotels and a visionary postevent legacy plan to be rejected from hosting a major sporting event because it did not intend to enact brand protection legislation? The danger that these influential world governing bodies face is that although their objectives are legitimate, they are bordering on micro-managing the hosting of major events. It is in this context that competition law concerns are raised, since most sports governing bodies hold dominant market positions due to the fact that their gover nance structure gives them a virtual monopoly. In the European context, the competition provisions of the EC Treaty (67) may very well apply if the decisions of the sporting bodies distort trade between member states or are deemed anti-competitive in light of dominant positions held in the sports market. EC law, though, does not frown upon the existence of a dominant position, but the abuse of it.

3.14 Rejected European nations can conceivably present the case that their rejection as a host nation has distorted competition in the European sports market because of a failure of the governing bodies, as undertakings, to apply objective criteria during the bidding process. Perhaps the legal minds in Spain will pursue that route some day having lost consecutive Olympic bids for the 2012 and 2016 Summer Olympics. The Danish Tennis Federation (68) and Hendry (69) rulings confirm the need for objectivity, fairness and transparency at the bidding stage of a selection process.

3.15 This alleged "micro-management" of event hosting by powerful world bodies is a reflection of the changed priorities of modern sporting culture. Previously, the salient factor in bidding was the quality of facilities. While that remains a central feature, the paramount consideration is now the protection of commercial interests so that brand protection and strong intellectual property security are pertinent and perhaps, indispensable elements of a bid package. Recent bids highlight the emphasis placed on IP protection in prospective host nations.

D. Bids In Phases 2 and 3: 2000-2019

"The Scandinavian nations are also becoming more competitive when bidding to host showcase sport events, while Turkey and the Middle East receive strong support from their respective governments who are expressing a desire to host a mega event in the future" (70)

3.16 Walters' synopsis sets the backdrop for the popularity of major event bidding today and the increasing trend towards government support in that process. Since 2000, commercial traffic on the highway of sport has reached unprecedented levels with major events occurring practically every year. This bid analysis begins with arguably the world's largest sporting spectacle.

(I) Olympic Bids

3.17 The IOC has established guidelines for bidding nations. (71) The expectation is laid out that a host city and its National Olympic Committee (NOC) should ensure the protection of Olympic properties and that they "shall obtain from their government and/or their competent national authorities, adequate and continuing legal protection ..." (72) The mandate originates not only in the boardroom of the IOC executive but more significantly in the commercial programme of IOC sponsors, who provide 40% of Olympic marketing revenue (73).

3.18 A host city and its NOC are obliged to protect the Olympic symbol, the Olympic motto as well as the terms 'Olympic' and 'Olympiad.' It is pragmatic for this to be realised thorough legislation, unless the IOC grants permission to each of approximately 205 NOC's to register the terms as word marks, an admittedly cumbersome process. Trade mark law permits, inter alia, the registration of words as trade marks, especially if the principal requirement of distinctiveness is met.

3.19 NOC's have also sought to obtain Olympic IP protection by persuading their governments to become signatories to relevant international treaties like the 1981 Nairobi Treaty, (74) although that Treaty applies only to the Olympic symbol and not the other Olympic properties. (75) There is general agreement that the Treaty was not popular because, as Michalos notes, "the requirement of the authorisation of the IOC, rather than of the respective national Olympic Committee, is probably the stumbling block of many nations." (76) Johnson adds that a real problem is created with such an expectation since a country's domestic law may have already granted rights in the Olympic symbol to the NOC, as is the case in the USA (77) under its 1978 Amateur Sports Act. (78)

3.20 The upshot is that, at least with regard to the Olympics, the implementation of specific legislation is the preferred option for bidding nations. Alternatively, the existing legal structure must be potent. A few salient observations can be made from the recent race to host the 2016 Summer Olympics.

(a) The unsuccessful 2016 bids

3.21 Expectedly, "Chicago 2016" "Tokyo 2016" and "Madrid 2016" were all registered in their respective Trade Mark offices. The City of Chicago enacted the Olympic Approval Ordinances 2007 and 2009 while the State of Illinois passed the 2016 Olympic and Paralympic Games Act. Chicago also relied on existing legislation like the 1946 Trade Mark Act (Lanham Act), the 1999 Anticybersquatting Consumer Protection Act, the 1976 Consumer Protection Act, the 1984 Trademark Counterfeiting Act and the 1978 Olympic and Amateur Sports Act as part of its legal strategy to protect the relevant event marks.

3.22 Japan's legal approach was different to Chicago's in that it proposed to rely solely on existing legislation like the Unfair Competition Prevention Act to protect the Games. The IOC Evaluation report notes that in Japan "new enabling legislation would be introduced if required." [Emphasis added] Japan's approach highlighted that not all stakeholders feel the desire to rush to sui generis ambush marketing legislation.

3.23 Since 1990, Spain enacted a Sports Law 10/1990 dated October 15 (79) which offers protection to Olympic properties generally and is not limited by a sunset provision. The Spanish law, notably, purports to protect the words "Olympic Committee" and "Paralympic Committee" which is broader than most other jurisdictions and perhaps unnecessary. No additional legislation was drafted in Spain for its 2016 bid and reliance was placed on existing laws.

3.24 Despite its failure, one noteworthy aspect of the Chicago Bid was that an event like the Olympics if "held in the Unites States is designated as a National Special Security Event." (80) The effect of this is to allow the US Federal Aviation Administration to restrict advertising in the airspace above the 2016 Games. (81) This is a useful measure that can have great utility in the future of event bidding.

(b) Rio's Success

3.25 The Rio Bid contained a compact brand protection programme. Both the State and City of Rio de Janeiro had already passed Olympic Acts. (82) "Rio 2016" was registered with the Brazilian Trademark Office while brand protection was based on the 1988 Federal Constitution, the 1996 Industrial Property Law, the 1998 Pele Law and the 2003 Counterfeit Law.

3.26 Similar to Tokyo, the Brazilian approach was to amend the existing legislative framework "as necessary to accommodate any Games-specific requirements." (83) Article 124 of the Industrial Property Law is particularly relevant to the ambush marketing fight as it "prohibits companies that are not official sponsors, providers or supporters of the Olympic Games from registering any item, brand or symbol which could easily be confused with official partners and symbols." As a result of its legislative proactiveness, Brazil was well placed to prove that Olympic and other commercial brands would be secure.

(II) Other Event Bids

"Venue guarantees and agreements are in place and legislation is drafted and ready to be introduced should we be successful." (84)

3.27 Since that statement was made, Glasgow won the right to host the 2014 Commonwealth Games. Lewis and Taylor observe that "the announcement in late 2007 that Glasgow had won the bid to host the 2014 Commonwealth Games was closely followed by the introduction of the Glasgow Commonwealth Games Bill, which sought to give effect to the commitments made by the Scottish Government as part of the bid..." (85) Bidding countries for the Commonwealth Games are therefore also obliged to make commitments that legislation will be passed.

3.28 Similarly, the South African government gave guarantees to FIFA that, if awarded the 2010 World Cup, it would ensure brand protection of official partners. In this regard, the 2010 FIFA World Cup South Africa Special Measures Act 11 of 2006 and the Second 2010 FIFA World Cup South Africa Special Measures Act 12 of 2006 were passed. These statutes will be considered in greater detail in Chapter 5. Likewise, nine host countries in the Caribbean passed 'Sunset Legislation' in order to meet ICC host nation requirements for the 2007 Cricket World Cup while New Zealand has already passed legislation as it anticipates hosting the 2011 Rugby World Cup and the 2015 Cricket World Cup. (86)

E. Conclusion

3.29 The reasons for choosing one bidding territory over another are not usually given after the event is awarded. Yet, certain fundamental issues surface:

(i) Is that country's culture a "protective" one when it comes to sports, brands and marketing?

(ii) Does the bidding nation have a track record of strong IP protection?

(iii) Does it have an effective law enforcement policy and practice?

3.30 These questions deserve consideration and may reveal what future trends will develop for sports hosting. Certain countries have already been awarded multiple major events (87) since 2000, including Australia (88), South Africa (89), New Zealand (90), Canada (91) and the United Kingdom. (92) It appears that for these countries the above three questions can all be answered affirmatively. Notably, each of those five nations has a common law legal system, while some civil law countries like Spain, Japan, Switzerland and Mexico have each hosted only one 'mega' event during Phases 2 and 3. France is exceptional among civil law countries having hosted the 1998 FIFA World Cup and the 2007 Rugby World Cup.

3.31 This is ironic in view of the fact that it is countries with civil law legal systems that tend to hold legislation as their preeminent source of law. The recent dominance of major event hosting by common law countries suggests that a country's legal system may not have much bearing on the selection of the host nation. The election of the 2018 host nations for both the FIFA World Cup and the Commonwealth Games may elucidate the key determining factors in this prestigious but competitive race. That being said sports governing bodies would do well to further educate bidding nations about the criteria used for electing a host nation and whether the eminence of commercial considerations should instruct Bid Committees to pay closer attention to brand protection.

3.32 The palpable conclusion is that the practice of enacting protective legislation for sports events is well entrenched. The only distinction from one bid to another is whether the legislation already exists or new legislation must be introduced. Some territories have secured brand protection by amending existing laws. In South Africa, both the Trade Practices Act 76 of 1976 and the Merchandise Marks Act 1941 were amended to prepare for CWC 2003, the 2009 Confederations Cup and the 2010 FIFA World Cup. In Switzerland, in anticipation of the 2008 European Football Championships, amendments were made to Federal Act on Unlawful Competition provoking much controversy. Australia amended its 1987 Olympic Insignia Protection Act (OIPA) to prepare for the 2000 Sydney Olympics, but still saw it fit to enact the Olympic Arrangements Act 2000 (OAA) and the Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Sydney Act). The OAA was one of those pieces of 'sunset legislation' that was passed for a limited time only, while the Sydney Act expanded the list of protected words first created under the OIPA 1987.

3.33 England also chose the path of legislative amendments when it altered the 1995 Olympic Symbol Protection Act but like Australia, UK lawmakers saw the need for further statutory intervention by enacting the 2006 LOGPGA in anticipation of hosting the 2012 Olympics. Whatever route is taken, the onus remains on event organisers to strike the balance between satisfying the needs of event partners while adhering to the broad spectrum of legal principles. That discussion is continued in Chapter 4.

Chapter Four - Sui Generis Legislation: Necessity and Legality

A. The Pro-Legislation Reality

"There is a growing trend for governments, in response to pressure from event organizers wishing to protect their events and contractual agreements with their sponsors, to introduce specific anti-ambush laws. These go beyond the traditional protections offered by trademark law, unfair competition/passing off, copyright, competition laws and human rights ..." (93)

4.1 The popularity of ambush marketing legislation especially within the last decade has brought it under close legal scrutiny. The backdrop for the enacting of ambush marketing legislation in many instances is the inadequacy of existing laws, including intellectual property and unfair competition laws. In other cases, legislation was enacted because of the compulsion bidding nations felt to please powerful sports governing bodies as well as sponsors, as discussed in Chapter 3. It is noteworthy that with regard to the Olympic Games, more and more countries, (94) both civil law and criminal law, have taken steps to afford special legislative protection for the Olympic symbol. (95) Despite the prevailing objections about the validity and enforceability of ambush marketing legislation, the reality is that it is now commonplace in the world of sport. There is still a case, however, for reliance on existing legal and non-legal mechanisms.

B. Not Without Options

4.2 Opponents of ambush marketing legislation believe that some provisions are oppressive, draconian, restrictive or unnecessary. Duthie presents various alternatives to enacting legislation under the following heads (96): controlling the levels of sponsorship, ticketing, media, intellectual property, locality, public persuasion and merchandise. Each of these deserves brief consideration.

4.3 The idea behind controlling the levels of sponsorship is to restrict the exposure given to non-event sponsors who may nevertheless be the sponsors of teams or individuals. This is a powerful tool for an event organiser who, at the planning stages of the event, can look at the rights landscape (97) and determine both the level and the number of sponsors. Bitel (98) holds the view that fewer sponsors are better, preferring FIFA's 6-sponsor model to the 30-plus sponsors used for the New York City Marathon. (99)

4.4 In practical terms, this may mean that athletes will not be allowed to display branding from their sponsors during press conferences or prize-giving ceremonies, for instance. (100) This type of scenario is not uncommon as occurred during a medal ceremony at the 1992 Barcelona Olympics when basketball legend Michael Jordan could be seen covering the logo of US team sponsor, Reebok, in order to protect his personal endorsement with Nike. Similarly, at Beijing 2008, star US basketball player Dwight Howard, personally endorsed by Adidas, used a basketball to hide the Nike logo on his US kit. This type of restriction is admittedly more of a practical measure than a legally enforceable one since an event organiser will be hard-pressed to prove any illegality on the part of a commercial entity who has genuinely invested financially and otherwise in a team or athlete.

4.5 Managing ambush marketing through ticketing controls is effective where conditions for entry include limitations on spectators' apparel where such attire advertises the brand of non-sponsors.

4.6 As far as media regulation is concerned, event organisers can seek to control the broadcast sponsorship of an event so that confusion is reduced. This not only allows for less clutter but reduces the likelihood of a repeat of the aforementioned Kodak ambush of Fuji at the 1984 Olympics. Likewise, the 1991 World Rugby Football Cup was the source of similar spectator confusion when Heinz's association with the event as a major sponsor was diluted by Sony's sponsorship of the television broadcast coverage. Additionally, at the 1992 Barcelona Olympics, Wendy's advertising campaign allowed it to capitalise on official sponsor Mc Donald's failure to purchase broadcast rights. Duthie even suggests that broadcast sponsors should offer a right of first refusal of broadcast sponsorship to event sponsors, but qualifies the proposal by noting that the latter should seek to also become broadcast sponsors of the events that they partner. (101)

4.7 Verow, too, acknowledges that broadcast sponsorship is an effective means of ambushing an event. He notes that one possible solution to this type of ambush is to "ensure that all the rights in broadcast events are dealt with together, at least giving an events sponsor the opportunity to cover the transmission and be its broadcast sponsor if it wants." (102) Leone concurs with Verow concluding that instead of "demanding ever more stringent legislation, sponsors themselves should be expected to counter ambush marketing by purchasing all the commercial opportunities afforded by a particular event." (103) Commercial partners of sports events would therefore be wise to purchase connected rights as a way to reduce the threat of non-partner competitors gaining an association with the event. While such involvement by non-partners is not strictly speaking illegal, it does reduce the value of the exclusivity that official partners not only seek to enjoy, but for which they have devoted large sums. This "saturation sponsorship (104)" strategy can also include the purchase of billboard and other advertising space in and around the event venue. It is a useful tool in preventing intrusion ambush as practiced by Nike at the 1996 Atlanta Olympics when it bought the billboard advertising space around the Games venues.

4.8 The use of public education campaigns is always helpful in reducing ambush marketing since it is a proactive measure. Event organisers do their commercial partners a huge favour when they inform the public about the identity of official sponsors, suppliers and licensees. Typically, however, the average spectator is not au courant about such matters but the public awareness does impact on the consumers' attitudes towards ambushers. These campaigns also provide an ideal occasion for educating the public on genuine and false merchandise relating to the event.

4.9 Intellectual property regulation is one of the most used and effective anti-ambush tools. Copyright, patent, design and trade mark laws provide a strong legal basis for brand protection, while offering various remedies against infringement. It is for this reason that Leone believes that "official sponsors are by no means defenseless under existing law. They already have intellectual property and unfair competition laws at their disposal. Any emblems or logos developed specifically for an event can be protected, especially by trademark or copyright. Unfair competition laws are available where company engages in misleading or deceptive advertising." (105)

4.10 Pauline Dore (106), in reviewing LOCOG's preparation for the 2012 Olympics also mentions the traditional legal methods like passing off, trade mark and copyright law, while Lewis and Taylor name the following alternative measures: trade marks, design rights, copyright, other laws and regulations, the Olympic Charter and International Paralympic Committee Handbook, contractual controls, authorities responsible for Intellectual Property protection, education and public relations. (107) The case presented for alternatives to sui generis legislation is a strong one.

4.11 Miller highlights three measures used by LOCOG outside of eventspecific legislation to protect the 2012 brand, listing traditional legal protection, continuing education and a robust defence as alternatives to special statutory rights. (108) Leone's assessment confirms the above as she speaks of "non-legal measures with which to combat ambush marketing" referring to methods like inserting appropriate contractual provisions, acquiring advertising space, preselling airtime to sponsors and policing unofficial merchandise with the help of local government officials. (109) The existence of this range of alternatives suggests that sports rights holders are not without recourse in the absence of sui generis legislation. The question of the appropriateness of event-specific ambush marketing may very well be determined by the magnitude of the event itself. The Australian experience is informative.

Lessons from the Australian Ambush Marketing Legislation Review

4.12 The Ambush Marketing Legislation Review (110) of Australia conducted between March and May 2007 was a very thorough documentary presentation of the strengths and weaknesses of specific Australian legislation in relation to effective ambush marketing protection. The statutes under review were the Olympic Insignia Protection Act 1987 (OIPA) and the Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2006 (Melbourne Act).

4.13 The Review observed that in light of "the perceived limitations and inadequacies of existing trade practices and IP Laws, one strategy has been to deal with ambush marketing through specific legislation." (111) Here, the Review speaks of "perceived limitations" implying that existing laws fail to provide adequate protection.

4.14 The Review adds that the "perceived inadequacies of the pre-existing law in protecting certain rights is a core justification" (112) for enacting ambush marketing legislation. It notes that the New South Wales Government and the Sydney Organising Committee for the 2000 Olympic Games held the view that "certain things at the time (e.g. certain Olympic expressions) were not covered by pre-existing law ... Similarly, it was argued that many words and symbols associated with the Olympics were unlikely to be registrable as trade marks." (113) Outside of special legislation protecting Olympic expressions, a lack of distinctiveness is the consistent registration obstacle for typically generic Olympic terms.

4.15 It is settled knowledge that the Olympic symbols have received special protection in some territories through the 1981 Nairobi Treaty following the 1980 Paris Convention. (114) Yet, protection of Olympic properties has often come in the form of specific legislation so that reliance is not always placed on traditional IP laws. Johnson notes that the genesis of Olympic symbol protection was actually not for the purposes of ambush marketing protection but instead to develop Olympic merchandising rights. (115) Over time, its value has grown almost exponentially.

4.16 The Australian concern about the registrability of certain Olympic expressions was well founded since terms like "silver" "gold" and "Games" would hardly satisfy any statutory which refers to "any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings." (116) It would take something additional to protect the family of terms usually associated with the Olympics.

4.17 As a result of these concerns the Senate Legal and Constitutional Reference Committee (SLCRC) "was persuaded that there needed to be an expansion of the scope that the Australian Olympic Committee (AOC) could license, because the preexisting law meant enforcement of rights to certain subject matter was restricted. By removing these restrictions, the OIP Act could expand the organiser's rights and increase its licensing revenue." (117) The observation was therefore made that existing IP law in Australia was too restrictive on the AOC, who needed more commercial flexibility in order to maximise revenue-generation potential. It would take the enactment of the OIP Act to achieve that objective.

4.18 Hence, opposing viewpoints exist regarding the necessity of sui generis legislation. One solution may be that the need for ambush marketing legislation must be assessed on an event-by-event basis, in which the magnitude of the event and the strength of existing law are among the salient factors to be considered. The New Zealand criteria is useful and includes the following considerations: Will the event-

i) attract a large number of international participants or spectators

ii) raise New Zealand's international profile

iii) require a high level of professional management and co-ordination

iv) attract a large number of New Zealanders as participants or spectators

v) offer substantial sporting, cultural, social, and economic benefit to New Zealand? (118)

4.19 This model, though in need of further specifications for each of the benchmarks set, is commendable since it seeks to establish objective criteria upon which decisions are made with regard to protection from infringement.

C. Passing Legal Muster

"... their legal validity could and should be challenged from an enforceability perspective in certain specific circumstances." (119)

4.20 Mouritz's assertion that the Vancouver 2010 ambush marketing legislation should be challenged is a fair indication that legal scrutiny is not misplaced for anti-ambush laws. On closer examination, other principles of law are often compromised by ambush marketing legislative provisions.

(I) Competition Law

4.21 The merger of sport, business and law has become well established during the last few decades. Not only is this synthesis a practical one, it now also has legal backing as European Court of Justice (ECJ) and Court of Arbitration for Sport (CAS) jurisprudence have acknowledged the application of EU law to sport. The line of cases beginning with Walrave (120) and Dona (121) through to Bosman (122), Kolpak (123) and Simutenkov (124) and culminating with more recent rulings in Meca-Medina (125), QC Leisure, (126) Webster (127) and Matuzalem (128) tell a compelling story of how sport has been impacted by the rule of law, especially where it constitutes an economic activity under Article 2 of the Treaty of Rome.

4.22 By virtue of the European Community (EC) Treaties and the 1998 Competition Act in the United Kingdom, principles of competition law have been conspicuous in the regulation of the commercial aspects of sport. Treaty Articles 81 and 82 respectively address matters relating to distortion of competition and abuse of dominant market positions. Decisions in Hendry (129) and MOTOE (130) highlight the approach of the ECJ with respect to Article 82 questions. In the former case, Lloyd J. evaluated the defendant body's rules as they sought to restrict the formation of rival snooker tournaments. He held that that kind of rule breached competition law and was also an unreasonable restraint of trade. The latter case also addressed the abuse of dominant positions in the context where the Greek State refused to grant MOTOE (131) the necessary authorisation under Greek law, to organise motorcycle competitions in Greece. (132)

4.23 The question begs whether the IOC's and FIFA's monopoly positions are abused when they offer exclusivity to one set of sponsors over another. That issue resembles the matters raised in the Danish Tennis Federation(DTF) (133) litigation in which there was an apparent lack of objective criteria in the selection of exclusive tennis ball manufacturers. The court in DTF objected to the Federation's decision to appoint tennis ball manufacturers without the objectivity of a tendering process. Additionally, the length of exclusivity granted to Slazenger and Trethorn in that case, meant that other manufacturers were excluded from the market for the full period of exclusivity which was three years.

4.24 The granting of exclusive rights inherently raises competition law issues. In the context of ambush marketing laws one issue arising is if it is lawful for event organisers to grant exclusive rights to sponsors. To resolve that matter, one needs to determine the nature of the market, the manner in which sponsors were chosen and whether non-sponsors were afforded the opportunity to enter that market. It is for reasons like these that Kobel pondered whether the popular Lillehammer ambush by American Express (134) raised market foreclosure issues on the part of the IOC that warranted legal action by American Express and ticket vendors and retailers. (135)

4.25 Verow's analysis of market definitions offers a helpful perspective in the context of competition law and sport. He notes that generally speaking, "the scope of the relevant market for competition law purposes is determined by reference to the application of 'demand side substitutability' or in appropriate cases 'supply side substitutability'" (136) with the former being the more prevalent test in sportrelated cases. (137) Demand side substitutability deals with consumer reaction to price increases whereby they make a switch from one product to another in the face of a price rise. In the sports sector, a consumer's ability to find adequate substitutes for the desired product or service is very dependent on the sport itself, its popularity and its access. For this reason, exclusivity issues must be carefully managed if the effect of granting exclusivity is to restrict consumer access to sporting products and sports content.

4.26 Lewis and Taylor also acknowledge the need to properly regulate product category exclusivity arrangements noting that they "may raise competition concerns under Article 81 of the EC Treaty..." (138) It is hard to dispute that exclusive arrangements, especially if lengthy, will distort competition. Only if these restrictions are proportionate and are made in pursuit of legitimate objectives will they escape the punitive hand of competition authorities.

4.27 It is also not uncommon for sponsorship contracts to include rights of first refusal for existing sponsors who therefore get to monopolise their association with a particular brand, tournament or event. This, too, may very well contravene Article 81 of the EC Treaty since again, competition is restricted. Again, issues of proportionality and legitimacy of objectives become key determining factors in assessing the legality of a rights holder's actions.

4.28 Leone's concerns are instructive. She notes that in "every other sector of the economy ambush marketing is an accepted practice which promotes competition. Banning it would constitute a major restraint of trade and by benefiting a few major companies at the expense of many others, could well be anti-competitive." (139) While it is debatable whether ambush marketing is accepted in other economic spheres, there is a case for stating that bans on ambush marketing can on the particular facts be seen as anti-competitive since few are protected at the expense of many. On the other hand, a commercial free-for-all is hardly a desirable outcome because of its disruptive effect on business, marketing and financial regulation.

4.29 Restrictions on competition are not misplaced because in the absence of them, income-earning potential through sponsorship can be undermined with detrimental effect. No sponsor will show alacrity in making future investments if there is no tangible benefit when current investments are made. At the same time, the conduct of event organisers must also be kept on a leash of competitive parity. Gardiner notes that "competition regimes exist to regulate economic activity within countries and are usually predicated on the notions of 'fair play.' Most competition regimes aim to avoid anti-competitive behavior of cartels and prevent firms from abusing their dominance in any particular market." (140) Hence, legal doctrines like the essential facilities doctrine exist to ensure that strong market powers do not unlawfully exclude others from market entry. It is nevertheless important to articulate that exclusivity in and of itself is not illicit if there is a lawful tendering process, as enunciated in Danish Tennis Federation.

4.30 Leone adds that "Governments do come under much pressure from event controllers, like the IOC and FIFA, to introduce such legislation and one may query whether such actions on the part of event controllers comply with EC competition law." (141) This is a classic case of balancing legitimate interests of multiple stakeholders and it is incumbent upon world governing bodies and rights holders generally to avoid being myopic in their outlook on event delivery.

4.31 The IOC and FIFA, in particular, are quite aware of their power and influence and are seemingly unafraid to challenge existing legal systems if their interests are being compromised. These two world bodies were rather vocal in expressing their dissatisfaction with the 2007 EU White Paper on Sport, while FIFA, like the ICC, also loudly voiced its concerns about the whereabouts rules that the World Anti-Doping Agency (WADA) brought into force on January 1, 2009. Yet, the power of these bodies makes them vulnerable to being blind to other perspectives, so that future contention can be expected between them and the law.

(II) Constitutional Law

"To date, the laws in the United States have been on the side of ambush marketers. As long as their statements are generally truthful, they have been protected as commercial speech under the First Amendment." (142)

4.32 One of the biggest legal hurdles to the enactment and enforcement of ambush marketing legislation is the potential conflict with constitutional and/or fundamental human rights. Kaufmann-Kohler, Rigozzi and Malinverni note that since 1970, the European Court of Justice (ECJ) held that "the protection of fundamental rights is a general principle of European law ..." (143) An analysis of specific clauses in ambush marketing legislation reveals that some provisions are likely to be declared legally unenforceable.

4.33 A useful starting point is the United Stated (US) status quo where unlike "other nations such as the United Kingdom, New Zealand and South Africa, the US has not enacted legislation which prohibits ambush marketing." (144) This reality clarifies Schmitz's assertion that in the US a trade mark holder will more often than not seek relief against an ambusher under the 1946 Lanham Act. (145) The implication, then, is that US lawmakers are wary of enacting legislation that can be deemed to breach constitutional rights, a fact which requires a special Parliamentary majority in some Commonwealth nations. It is this legal friction that is at the centre of the current controversy caused by the whereabouts requirements of the World - Anti - Doping Agency for athletes in national or international registered testing pools. Evidently, the balancing of competing rights is a central feature of any effective legal system.

4.34 Many constitutions also protect the freedom of expression. Anti-ambush laws purport to curtail that liberty. (146) This tension mirrors the dichotomy between the "potentially conflicting rights" (147) of European Convention on Human Rights (ECHR) Articles 8 and 10 as it concerns the right to privacy and the freedom of expression. These competing interests were judicially considered by the South African Constitutional Court in Laugh It Off Promotions. (148) The court held that "this case brings to the fore the novel, and rather vexed, matter of the proper interface between the guarantee of free expression enshrined in s.16(1) of the Constitution and the protection of intellectual property rights attached to registered trade marks as envisaged by s.34 (1) (c) of the Trade Marks Act 194 of 1993 and consequently to related marketing brands ..." (149)

4.35 This right to free speech will continue to be a thorn in the side of law-makers who fail to consider the panoply of vested rights among various stakeholders.

(III) The Law of Tort

"Economic torts are also relevant to sport. There the wrongdoing consists of a deliberate act, not involving a breach of contract towards the victim, causing economic loss." (150)

4.36 Beloff's succinct analysis of the marriage of tort and sport reaches the heart of the offences of passing off, trespass and deprivation of property without compensation. Ambush marketing laws that seek to regulate advertising and marketing conduct in the locations bordering event venues usually ignore the proprietary rights of private landowners. Rights to property are also well enshrined fundamental and constitutional rights. The problem with the anti-ambush laws is that landowners who cede proprietary rights for the duration of the event are not compensated. These imbalances must be addressed at the drafting stage of sui generis laws.

(IV) Advertising and Media Law

"The proposed amendments have already provoked a vehement reaction in Switzerland. Certain voices complain about the impairment of the liberty to produce advertisements, others reproach the Swiss Government for being compliant with UEFA and cementing the quasi-monopolistic status of large sports organisations." (151)

4.37 Hufschmid captured the reactions to Switzerland's brand protection attempts prior to Euro 2008. The cry was the familiar one from media organisations who jealously guard both their rights. It seems, though, that the complaints in Switzerland did produce a negative impact given reports of 18 instances of ambush marketing (152) at the 2008 European Championships (Euro 2008) co-hosted by Switzerland and Austria. The Centre for the International Business of Sport (CIBS) reported Burger King's "red card" advertising campaign which ambushed Mc Donald's official sponsorship as well as Heineken's ambush of event sponsor Carlsberg through its distribution of Heineken-branded hats for the benefit of Dutch fans. (153) It appears that respecting the liberty to produce advertisements was exactly the open door that Burger King needed to create an association with Euro 2008 without being an official sponsor.

4.38 In South Africa, the Advertising Standards Authority adopted a Code of Advertising Practice and Procedural Guide, with the main objective of consumer protection and the promotion of advertising fair play. (154) One of the central features of the Code is the stipulation that express permission must be obtained by any advertiser seeking to refer to a living individual. (155) The Code therefore contemplates the protection of privacy, a useful tool to prevent the unauthorised exploitation of an athlete's image.

4.39 These regulations may well be tested at the 2010 World Cup, since FIFA plans to restrict footballers who wish to show allegiance to their individual sponsors.

D. Clean Venue, Clean City, Clean Athlete!

"The IOC now thinks of the Olympic Games in terms of a 'clean city' and not just a 'clean stadium' entering into direct agreements with local authorities in an attempt to eradicate ambush marketing' (156)

4.4 Like FIFA, the IOC's vision of an effective commercial programme is an enigmatic mixture of foresight and paranoia. The 'clean venue' concept is well established but its legality remains in doubt. New Zealand, for instance, lost the right to co-host the 2003 Rugby World Cup due to its failure to provide 'clean venues.' (157) The legal footing for this expectation from world bodies is, at best, shaky and is destined to be challenged sooner than later.

4.41 Admittedly, the 'clean city' vision is commendable and the search for "commercial purity" in and around event venues is reasonably justifiable but in practical terms, the purging of an entire city is disproportionate. Nevertheless, it is the concept of the 'clean athlete' that is most disturbing.'

4.42 Clean athlete' in this regard s not to be confused with a drugfree athlete, which is a universally desired objective. 'Clean athete' in this regard refers to the sportsman or sportswoman who is prohibited from displaying the branding of his or her individual sponsor during the period of the sporting event. There is an inherent injustice when an entity has decided to invest in the growth and development of an athlete and through that support, the athlete achieves global acclaim and status. Now that the athlete has qualified for the Olympics, for instance, he has to divorce himself for two weeks from the very body that helped to harness his innate ability. This is apparently justified because Brand Z, the athlete's sponsor, is not an Olympic sponsor.

4.43 The solution herein is in the negotiation and conclusion of clearly defined contracts and carefully-drafted sporting rules that effectively consider the rights of athlete, sponsor and event organiser.

E. 'Creepy' Legislation

"The ability of international federations to make these demands has led to horizontal and vertical creep (158)"

4.44 Johnson's very insightful assessment of the concepts of vertical and horizontal creep is noteworthy. (159) He defines the latter as occurring when one country almost blindly adopts the legislation of a previous host. The effect is that the second event, often less prestigious gets just as much or even broader than the earlier event. Classic examples include the CWC 2007 legislation mirroring that of the 2003 CWC laws with almost verbatim legislative language. Johnson saw similar trends with Vancouver and New Zealand imitating the 2006 London Olympic Act. (160) The result tends to be the enactment of laws that are disconnected with both the commercial and legal reality of the second enacting nation.

4.45 Vertical creep occurs where the same country hosts multiple events with the similar result that the second event may get protection that is to generous for its size as occurred with the 2009 Lusophony Games in Portugal benefitting from the Euro 2004 legislation in Portugal. Johnson also noted that the 2006 Melbourne Commonwealth Games received broader protection in some regards than the 2000 Sydney Olympics.

F. Lessons from Vancouver 2010

4.46 After its successful bid, the Vancouver Organising Committee for the 2010 Winter Olympics (VANOC) proposed the Olympic and Paralympic Marks Bill C-47 as the relevant statute to address the ambush marketing threat. Its justification lies in the fact that the total operating revenue is US $1.63 million of which US $760 million is expected to be contributed by VANOC sponsors. (161) Mouritz notes that this sum represents the biggest portion of VANOC's Operating Revenues. (162) The case is therefore built for strong measures to be enforced to protect the significant contribution made by VANOC's commercial partners. Nevertheless, Mouritz equally observes that the Bill contains what he calls "very stringent protective provisions." He believes that the "Canadian Legislator seems to have gone overboard in some of the protective measures" (163)

4.47 The fact that "the Bill outlaws nearly all use of Olympic trademarks and of certain generic Olympic terms" does raise the concern about the extent to which the Canadian legislation has gone to protect Olympic marks and sponsors' brands. Like London 2012 and Sydney 2000, Vancouver 2010 has sought to protect words like "Gold" and "Silver" as well as the word "winter." The Vancouver laws have therefore been deemed "overly restrictive." (164) Perhaps during the 2009 Christmas season, these overbroad restrictions made Canadians hesitant to recite the verse referring to "five golden rings" in the popular "12 Days of Christmas" carol!

4.48 Mouritz further highlights VANOC's fear that Olympic IP rights will be used in an unauthorised manner which has the direct result of undermining "VANOC's ability to raise the funds necessary to host and stage the 2010 Olympic Games." (165) To deal with those fears the legislation has been enacted but the restrictions placed, prima facie, appear disproportionate.

4.49 A significant issue is therefore raised: "The question at hand is therefore whether the restrictive provisions in the Bill on the use of Olympic trademarks and of generic Olympic terms are legally enforceable under English law in a non-commercial setting." (166) The Canadian Bill does not allow for non-commercial use of Olympic trademarks nor of the generic Olympic terms. (167) Canada's Trade Marks Act, like the UK 1994 Trade Mark Act creates an infringement only when protected marks are used "in the course of trade." There is no infringement if use is not in the course of trade. For this reason, Mouritz argues that "non-commercial use of the Olympic Trademarks would fall outside of ECJ case law, and, in any event, the UK Trade Marks Act 1994 and the Canadian Trade Marks Act and should therefore be allowed in absence of the Bill. There is thus a conflict between the Bill and VANOC's policies on one hand and UK and Canadian intellectual property laws and ECJ case law on the other hand in relation to non-commercial use." (168)

4.50 Indeed a conflict is apparent since ECJ, UK and Canadian jurisprudence caters for non-commercial trade mark use while the VANOC bill does not. The explanation given is that the Canadian Government seems "to be applying the legal principle of lex specialis derogat lex generalis in order to justify its departure from its own trade mark legislation." (169) That principle essentially means that in a case of two conflicting laws, the more specific law takes precedence over the more general law.

4.51 When considering non-commercial use of generic Olympic terms in domain names as well as the freedom of expression right granted under the ECHR, Mouritz concludes that the Canadian legislative provisions will be hard-pressed to be found as legally enforceable. (170) It is hard to disagree with this viewpoint.

4.52 In Chapter 5, the focus switches to the legal systems in put in place for the 2010 World Cup and the 2012 Summer Olympics.

Chapter Five - The Legal Landscape of South Africa 2010 and London 2012

A. Hosting Multiple Events

5.1 Some nations have had the privilege of hosting major events on multiple occasions. The experience gained now provides a useful toolbox for other countries. In this chapter, South Africa and England will be examined with a view to assessing the legal preparations for the 2010 World Cup and the 2012 Olympics respectively, especially as it relates to protection from ambush marketing.

B. Case Study#1: South Africa

5.2 The FIFA World Cup 2010 has not even arrived and already the ambush marketing attempts have begun. It was reported (171) that the South African Football Association (SAFA) recently took two cases to the Advertising Standards Authority and was successful on both occasions with the culprits being Hyundai and Mobile Telephone Networks (MTN), both organisations being neither sponsor nor supplier to SAFA or to the men's senior national football team (Bafana Bafana). Hyundai ran an advertisement in which a national team player was wearing an official national team jersey. This misled the public into thinking that Hyundai was an official partner of the national team. Similarly, MTN also suggested an association with the national team by its use of the words 'Bafana Bafana' in an advertisement.

5.3 The report identified the documentary support in place for SAFA through its Sponsorship Code, in particular at Article 11.1.1 which states that: "No organisation, other than an official sponsor, may directly or by implication create an impression that its communications relate to a specific event or create an impression that they are an official sponsor of such an event." (172)

The Code therefore prevents an unauthorised association with an event whether directly or impliedly. This mirrors the intent of most anti-ambush mechanisms. In the above scenario, it is only the national team sponsors, Absa and Castle that can lawfully make an association with Bafana Bafana.

5.4 When South Africa was preparing to host the 2003 Cricket World Cup (CWC), event organisers relied on the Trade Practices Act 1976 (TPA) and the Merchandise Marks Act (MMA) for intellectual property protection. Amendments were made to these statutes to have specific applicability to the 2003 CWC.

5.5 Duthie notes one such amendment to the 1976 TPA that "prohibits the making or displaying of statements or advertisements that falsely imply or suggest a connection between the person making the statement and a sponsored event." (173) The MMA amendment sought to "prohibit the use of an ambusher's trade mark in relation to a designated sporting, entertainment or other event where such use is unauthorised by the event organiser but is nevertheless 'calculated to achieve publicity for that trade mark and thereby to derive special promotional benefit' from the event." (174)

5.6 Such an amendment, on its face, seemed both necessary and effective as it widened the offence to include not just offensive conduct but also offensive motivation. Trade mark use that was "calculated to achieve publicity" was now included. Admittedly, it is always difficult to discern motives or intent, but the widening of the offence would itself put ambushers on the alert.

5.7 Duthie usefully notes that the amendment represents "a real change in emphasis because it catches those advertisers that merely seek to benefit from another event's publicity, rather than suggest any connection with the event." (175) This latter behaviour is typical of those who ambush by intrusion and it is instructive to note that the MMA amendment extends beyond sporting events to include entertainment or other events. This breadth is similar to that envisaged by the New Zealand Major Event Management Act 2007. (176) The MMA amendment has also taken on additional significance in that it creates a criminal offence for infringers. Notably, the European Sponsorship Association (ESA) does not believe that infringing anti-ambush marketing laws should be criminalised, noting that the "threat of jail should be reserved for genuinely criminal matters". (177)

5.8 With greatest respect to the ESA, it may take the increased involvement of the criminal to help curtail ambush marketing which if left underregulated will ultimately undermined the future of sports development especially at the grassroots level.

(i) Case Law in South Africa

5.9 By virtue of the vastness of football business today, FIFA's frequent appearances as a litigant can is not unexpected. In April 2009, FIFA's contentious muscles were flexed in the North Gauteng High Court in Pretoria, South Africa, arising from a World Cup 2010 dispute. In FIFA v. Eastwood Tavern (178) the Defendant restaurant embellished its signage with the inscription "World Cup 2010" which would have been conspicuous in its appearance due to its proximity to Loftus Stadium in Pretoria, one of the 2010 World Cup venues. Further, the number '2010' and the words "two thousand and ten South Africa" were featured close to the hoisted flags of reputable football-playing countries. The Court decided in FIFA's favour ordering Eastern Tavern to abstain from this form of unlawful competition. (179)

5.10 The decision was a predictable one given the passage of the 2010 FIFA World Cup South Africa Special Measures Act 11 of 2006 and the Second 2010 FIFA World Cup South Africa Special Measures Act 12 of 2006 and Government Gazette notice of December 14, 2007. Annexure C 1 to the Gazette notice prohibits the use of expressions including but not limited to "World Cup 2010" "2010 FIFA World Cup South Africa" "SA 2010" "2010 FIFA World Cup" and "Football World Cup." (180) Additionally, the World Cup in South Africa has been designated a "protected event" under s.15 (A) of the Merchandise Marks Act, offering the event statutory protection. (181) The designation of the "protected event" is akin to the New Zealand legislative policy to declare certain events as "major events" for the purposes of its Major Events Management Act 2007.

5.11 As discussed in Chapter 4, the South African Constitutional Court in Laugh It Off decision was forced to balance competing interests relating to protection of IP rights and freedom of expression. Any discussion of juridical developments in South Africa must consider its status as a constitutional state, in which 1996 Constitution, including its Bill of Rights, has priority over other rules (182), including those of sports bodies. The Bill of Rights provides for the right of access to court, which is also an ECHR right, as well as rights to equality, property, freedom of expression and administrative justice. (183) It means that the period of the 2010 World Cup will be one where competing interests must be delicately balanced given the multiple stakeholders involved.

5.12 In Coetzee v. Comitis (184), the South African High Court took the bold step of setting aside in their entirety, the rules of the Professional Footballers Association. The rationale for this was that they breached the fundamental rights of the footballers. Again the priority given to the fundamental rights of athletes was evident.

5.13 As the 2010 World Cup draws nearer, legal authorities in South Africa are getting sharper. It is destined to be exciting both on and off the field.

C. Case Study #2: London 2012: The legislative landscape

5.14 The London 2012 Bid received outstanding stakeholder support, including "over 400 guarantees from bodies who would be involved with the delivery of the Games." (185) Government guarantees consisted of "commitments from 11 different Ministers, including the Prime Minister underwriting the UK Government's commitments, the Secretary of State agreeing to introduce further laws to protect the Olympic symbols and to prevent ambush marketing..." (186) [Emphasis added]

5.15 Again the question begs whether London's bid would have been successful without the commitments from the Secretary of State to introduce further protective laws. The use of the word "further" infers that protective laws already existed. The issue that arises, then, is whether the existing laws in England, on their own, would have satisfied the IOC. The question seems to be more a matter of degree than relevance. Prima facie, the case for automatic sui generis legislative IP protection to secure a successful bid is questionable and the preferred option would be the introduction of such legislation on a case by case basis.

5.16 European Union law established the principle of subsidiarity in the 1992 Maastricht Treaty and it is arguable that the heart of the principle should be transposed into the event bidding context. A local Olympic Committee is more than competent to create, implement and enforce proper and functional commercial programmes, capable of safeguarding the investments of sponsors and other official partners. The need for the strong supervisory role of the IOC is rather misplaced and should be critically evaluated under the competition provisions of the EC Treaty in so far as its actions affect the activities of member states bidding to host a major event.

5.17 The London Olympic Games and Paralympic Games Act 2006 (LOGPGA) was passed within months of London being awarded the 2012 Olympic and Paralympic Games on July 6, 2005. Key initiatives created by the LOGPGA include the London Olympic Association Right and the Paralympic Association Right as well as Advertising and Street Trading Regulations. LOGPGA also made amendments to The Olympic Symbol Etc. (Protection) Act 1995 (OSPA), an Act which created the Olympic Association right in the UK. (187)

5.18 A significant feature of OSPA is that it transcends the wide gamut of past, present and future Olympic and Paralympic Games so that its effect will outlive the 2012 Games. (188) Further, the Act "made an important amendment to the protected words by adding "similar" words likely to create an association with the Olympic Games or the Olympic Movement." (189) This latter amendment in itself reflects the increasing pressure that Olympic host nations have felt with regard to the protection of Olympic properties. Such a move could either be interpreted as necessarily strict protection or unjustified paranoia.

5.19 Miller identifies why the protection of the London 2012 brand is essential noting that "Until the end of 2012 LOCOG is the guardian of the Olympic Rings and the Paralympic agitos. It is legally bound to protect these Symbols and the value, integrity and image of the Olympic Games and Paralympic Games." (190) Use of the London 2012 is reserved for LOCOG licensees including the IOC's leading international sponsors (191) and the major domestic sponsors. (192)

The scope of LOGPGA 2006 protection

5.20 LOCOG has employed the combination of "traditional legal protections (193)" and specific statutory rights. Under the traditional legal mechanisms, reliance has been placed on copyright, trademark and contract law. With regard to the statutory rights, LOCOG was granted special rights under LOGPGA to prevent unauthorised associations, the sale of counterfeit merchandise and conduct that undermines revenue generation. (194)

5.21 One question generated is whether these three goals could have been achieved otherwise. As has been discussed earlier, it is evident that the combination of other legal principles can be very effective. However, it does become legally cumbersome for sports brand owners to resort to borrowing morsels of contract, IP law, tort and property law to invoke their rights when one statute can offer broad protection.

5.22 The LOGPGA goes on to identify 'Listed Expressions' which are reserved only for LOCOG sponsors, partners and licensees. This is an area that produces much disagreement since generic words like "summer" "gold" or "silver" are given protection when used in conjunction with other expressions like the number "2012" or the word "Games." It is no surprise that advertisers have expressed their concerns that the Act restricts artistic license. (195) Whether the defences offered under the Act such as journalistic or artistic use, honest statement and incidental use provide sufficient security for advertisers and non-sponsors is an important consideration. Legislators of sport-related statutes have the unenviable task of stipulating Parliamentary intention while offering sufficient exemptions that recognise other stakeholder rights.

5.23 Central to the protection being given under the LOGPGA is the London Olympics association right (LOAR), found in s.33 and Schedule 4. The LOAR is defined as a right which "shall confer exclusive rights in relation to the use of any representation (of any kind) in a manner likely to suggest to the public that there is an association between the London Olympics and-(a) goods or services and (b) a person who provides goods or services." Subsection (2) elucidates what comprises an association referring to contractual, commercial and corporate connections.

5.24 The legal draftsmen have therefore placed significance on the concept of association. It is good policy not only to define what association is but also what it is not, as found in subsection 2 (b), which states that "a person does not suggest an association between a person, goods or a service and the London Olympics only by making a statement which-

(i) accords with honest practices in industrial or commercial matters, and

(ii) does not make promotional or other commercial use of a representation relating to the London Olympics by incorporating it in a context to which the London Olympics are substantially irrelevant."

While the section is broad enough to capture the essence of the right without being excessive, the situation is different regarding the protected words.

5.25 Words like "Olympic(s)" "Olympian(s)"and 'Olympiad(s)", unsurprisingly, have received special protection. The matter becomes contentious when attempts are made to protect generic words like "silver" "gold" and "games."

5.26 The LOGPGA in Schedule 3 makes amendments to the OSPA and seeks to expand the category of protected words to include words "so similar to a protected word as to be likely to create in the public mind an association with the Olympic Games or Olympic movement." (196) It therefore seems that "golden games" would constitute an infringement of the Act. The fact that there is no need for the association to be either intentional or misleading increases the likelihood of an offence being committed. Such breadth on its face appears disproportionate to what is necessary to protect the Olympic brand.

5.27 Further, the LOGPGA has given protection to "2012" "twenty twelve" and 'two thousand and twelve." Interestingly, another permutation "two zero one two," clumsy as it sounds, was not protected and arguably could be used to infringe the LOCOG marks. There appear to be no obstacles to deter a commercial entity that sells televisions from attracting customers with the slogan: "Get the Best View of Two Zero One Two." Doubt remains as to whether such an advertisement creates sufficient association with the 2012 Games to breach the LOGPGA. Admittedly, these issues rarely are straightforward, nor can legislation ever capture every possible infringement. It becomes a matter of reasonable limitations and proportionate restrictions.

5.28 It is this very need to balance interests that was a probable cause for what has been deemed a watering down of the original Bill. This has its benefits since LOCOG and event organisers generally must also be held accountable. In fact, the OSPA in some instances allows an action to be brought against a Proprietor of protected marks who makes groundless threats. (197)

(ii) A word on Scotland

"The Town and Country Planning (Scotland) Act 1997, the Trade Marks Act 1994, the Trade Descriptions Act 1968, the Control of Misleading Advertising Regulations 1988 and the common law of "passing off" already provide some protection against these activities. Nonetheless the short term, high profile nature of these Games leaves it vulnerable to ambush marketing strategies which could successfully operate within the law. The Bill seeks to fill the gaps in the current legal framework to allow the Games to take place free of ambush marketing and unregulated commercialisation." (198)

5.29 The language used in the Consultation Document suggests dissatisfaction with the protection provided by the existing Scottish legal framework, a sentiment also expressed in Australia, when passing its Sydney 2000 and Melbourne 2006 legislation. Something more was needed to "fill the gaps in the current legal framework." But what were those gaps?

5.30 Generally speaking IP laws, especially trade mark laws, do not go far enough to protect Games-specific word marks whose application for registration would otherwise be refused for want of distinctiveness. Consequently, sui generis legislation offered additional width for the Commonwealth Games Organising Committee. Lewis and Taylor also note that the Glasgow Commonwealth Games Bill created "new criminal offences prohibiting unauthorised advertising and outdoor trading near to the Games venues, as well as further new criminal offences prohibiting the unauthorised sale of Games tickets." (199) Like South Africa when it hosted the 2003 CWC, criminal offences were created. The creation of criminal offences is not the function of IP laws so that inherent limitations also arise in that regard. Admittedly, such measures are typically effective as a deterrent but are not usually proportionate.

5.31 The Commonwealth Games Host City Contract (HCC) also places additional responsibilities on Glasgow which needed to be reflected in its legislation. Among them is the requirement for "clean venues" (200) which has now become standard for host nations. Clean venues clear the way for official partners to fully exploit their brands having earned that right by virtue of the investments made in the event. The legality of the requirement is debatable as discussed in Chapter 4. In Chapter, judicial and academic opinions on ambush marketing are juxtaposed.

Chapter Six - The Juxtaposition of Academic and Judicial Opinions

A. Litigation Largely Avoided

"Italy is an interesting example of a specific legislation adopted in relation to the Turin Winter Games which did not give rise to any court case. We have no means to determine whether this is due to the extreme efficiency or the uselessness of that legislative package, or a little bit of both." (201)

6.1 Kobel's frank assessment confirms the general position that relatively few ambush marketing disputes have culminated in litigation. This could either result from effective anti-infringement programmes or from ambush marketers skillfully circumventing the law. This chapter proposes to examine international case law with a view to understanding the court's approach to the legal legitimacy of ambush marketing and to ascertain the levels of consistency between judicial and academic opinion.

B. Illegal, Immoral or Creative?

(I) Academic opinion

"Conversely, there are also those who admire ambush marketing, taking the view that if it is not illegal, then it is no more than the free market at work. Putting morality to one side, it is tempting to recognise it as (on occasion) ingenious and entrepreneurial, perhaps even an art form." (202)

"Ambush marketing ... occurs when one brand pays to become an official sponsor of an event (most often athletic) and another competing brand attempts to cleverly connect itself with the event, without paying the sponsorship fee, and more frustratingly, without breaking any laws." (203) [Emphasis added]

6.2 The abovementioned opinions typify the wide-ranging thoughts on the status of ambush marketing. Thoughts vary on the doublebarreled question of what behavior actually constitutes ambush marketing and whether the practice per se is lawful or unlawful. Both limbs are not easily discernible. While Leone considers the practice "perfectly legitimate (204)," Mandel calls it "stealing" and "thievery." (205) Even when there is agreement on activities that can be classed as ambush marketing, its legally remains a factious issue.

6.3 Leone offers the following as examples of ambush marketing:

a) sponsoring participating athletes or teams rather than the event

b) sponsoring television broadcasts of the event and

c) painting footballs on airplanes during a major football tournament.

6.4 It would seem legally untenable to label examples (a) and (b) as illegal activities since they involve legitimate sponsors investing in individuals, teams and media coverage. The fact that spectators may be confused as to the identity of the event sponsors is not the fault of the secondary sponsors. Reducing confusion then becomes a matter of a proper commercial programme and the strategic distribution of rights. The football-painting conduct is creative yet it would be unfair to label it illicit conduct unless the airplanes displaying the footballs were flying over protected airspace contrary to specific laws, a live issue during the 1996 Atlanta Summer Olympics where the Local Organizing Committee requested that the Federal Aviation Authority prohibit all unauthorised flights "within the city limits for the duration of the Games." (206)

6.5 A morality argument against ambush marketing would be premised on the fact that proper business etiquette requires entities, inter alia, to enter a market by making the requisite financial investments. Notably, the alternative designation "parasite marketing" itself lends to an inherently ethical stance as was recently highlighted in Switzerland, where the use of the term "parasitical" in the proposed amendment to the Federal Act on Unlawful Competition was criticised as "moralistic and unclear." (207)

6.6 The 1994 Lillehammer Winter Olympics highlighted what could be deemed immoral behaviour when American Express ran a campaign stating in effect that to travel to Lillehammer one needed a passport but not a visa. This was a clever play on words used by American Express to literally discredit its credit card rival Visa. Ethical? Perhaps not. Legal? Why not?

6.7 The wittiness of the American Express campaign does force legal observers to consider whether any legal principles have been breached. The law of passing off, prima facie, does not apply because there was no confusion about the goods or services of American Express being those of Visa. The more applicable set of principles appear to be advertising and unfair competition laws which vary from jurisdiction to jurisdiction.

6.8 Gardiner views the American Express campaign as ambush that falls within the category of comparative advertising. (208) He also believes that broadcast sponsorship by nonevent sponsors and the purchase of commercial air time equally constitute ambush marketing. Miller held the view that Dutch beer Bavaria's 2006 FIFA World Cup attempt to upstage Anheuser Busch's Budweiser beer was a clear ambush deserving censure. Evidently, the German stadium authorities held the same view instructing the Bavaria clad fans to remove their orange lederhosen.

6.9 Kobel's comprehensive ambush marketing report (209) lists a series of thought-provoking questions that attempt to uncover the enigma that ambush marketing sometimes can be. His queries, asked in 11 countries (210), included the following activities: any reference to the event without using the official name or logo; organisation of parallel events in the same town covering similar activities; the use of disclaimers by competitors of event sponsors; congratulatory messages during an event from team/athlete sponsors; and the purchase of television advertising slots around the event broadcast.

6.10 The determination of the status of each example rests very much with the statutory set up in the country in whcih the activities occur. Identifying an ambush may yet turn out to be easier than ascertaining its legality. However, the inconsistency surrounding its definition and its composition will leave the law in this area in a state of uncertainty for some time.

(II) Judicial Opinion

"It is humbly submitted that the Delhi High Court judgment refusing to accept ambush marketing as a ground for relief is a retrograde step." (211)

Case Law in India

6.11 Bhattacharjee's comments were made following the decision in ICC v. Britannia (212) in which the Delhi High Court held that ambush marketing was not available to the Plaintiff, the ICCDIL, (213) as it sought injunctive relief against Britannia Industries. At the heart of the conflict was the Plaintiff's claim that the Defendant's scheme "Britannia Khao World Cup Jao" amounted to unfair trading and that its use of the 2003 Cricket World Cup (CWC) logo was unauthorised and constituted ambush marketing. Holding that the balance of convenience did not lie in the Plaintiff 's favour, the court observed that the Plaintiff 's failure to contest the existence of a lawful agency agreement on the Defendant's behalf was fatal to its case. Further, the evidence in the rights contracts confirmed Britannia' right to use some of the event marks that it did, including the mascot. (214)

6.12 Bhattachargee's concern is meritorious. Even though the legality of Britannia's actions hinged on the rights granted in the relevant commercial agreements, the better approach for the Delhi High Court would have been to allow the plea of ambush marketing, even if the requirements to establish an offence were not met. To reject the plea is to imply that the claim was frivolous, arbitrary or capricious. Were the case heard in South Africa, the competition venue, the ICCDIL's case would have had a stronger legal footing due to the amendments made to the 1976 Trade Practices Act and the 1941 Merchandise Marks Act. (215) The amended laws prohibited the implication of a contractual or other connection with a sponsored event, and the unauthorised use of a trade mark relating to the event which use achieves publicity or derives benefit from the event. (216)

6.13 Before a South African court, the ambush marketing plea would at least be open to the ICCDIL, although it would have failed since Britannia had the requisite authorisation to use the event marks on its promotional material. Evidently, any such litigation would possibly have been the first since Cornelius, writing in 2003, noted that at "the time of writing hardly any legal action had been taken against any apparent contravention of these provisions during the Cricket World Cup tournament." (217)

6.14 It is submitted that in rejecting the plea of ambush marketing, the Delhi High court failed to embrace the modern sports business culture and bowled an unplayable delivery at event organisers. The court, even if it ruled in Britannia's favour, missed an opportunity to make a categorical statement about the damage that ambush marketing can cause to the long-term health of sports funding and development.

6.15 In Arvee (218) and in EGSS (219), the ICCDIL, as Plaintiff in both decisions, had contrasting results. In the former case, the court rejected the pleas of passing off and ambush marketing, holding that there was no misuse of the ICC logo with the effect that consumers would not conclude that there was a connection between the Defendant's goods and the 2003 CWC sponsors. (220) However, in EGSS, an injunction was granted against the use of the ICC logo which use was deemed to have been caught by the Indian Copyright Act. (221)

6.16 It is hard to reconcile the Indian World Cup cases, especially since copyright law, if applicable in EGSS should have been equally relevant in Arvee and Britannia. The dichotomy in the decisions may be explained by considering the causes of action presented to the court in each case. Had the ICCDIL not pursued passing off and ambush marketing in the first two cases, but instead relied on traditional intellectual property law, the outcome may very well have been different. The courts, generally, appear more willing to entertain causes of action based on well-entrenched legal principles, rather than novel grounds for relief, even if they are legally sound. That trend is also evident in North America.

North American Case Law

"Unless a clear decision is made by the courts or legislature, ambush marketing will continue and increase." (222)

6.17 Schmidz voiced his concerns during the time of the 2004 Athens Summer Olympics, as he observed the hesitance of the US courts to give a definitive ruling on ambush marketing. American jurisprudence however does reveal "the willingness of the courts to protect sponsorship and licensing contracts" (223) under section 43(a) of the Trade Mark Act of 1946 ("Lanham Act") which covers false designations of origin and false descriptions or representations. Such was the case in MasterCard v. Sprint (224) where both parties had official status, MasterCard as an official sponsor and Sprint, the official long distance telecommunications provider. Difficulties occurred when Sprint did not respect the product exclusivity requirements of ISL Football AG which had granted MasterCard the exclusive right to use the trademark 'World Cup 94' on card-based payment and account access devices, which included phone cards. (225) Sprint's use of the World Cup trade mark on its telephone cards was deemed unlawful since it was outside of its designated product category.

6.18 Schmidz's acknowledgment of the United States Olympic Committee (USOC) line of cases which cemented the function of the 1998 Ted Stephens Olympic and Amateur Sports Act (OAS Act) (226) is useful. In Stop the Olympic Vision (227), Union Sport (228), International Federation of Body Builders (229) and David Shoe (230), the courts held that the purpose of the OAS Act was to "insure the market value of licences." (231) This shows an admirable appreciation of and awareness for the value of the commerce of sport. In the US courts, then, primacy is accorded to contractual obligations in commercial agreements and there is an unmistakable loyalty to the letter of the law. This was evident in FIFA v. Nike. (232)

6.19 In that case, FIFA sought a restraining order that would stop Nike from using the designation "USA 2003" in circumstances where Adidas was the official footwear sponsor for the 2003 Women's World Cup (233). At the same time, Nike had a legitimate claim for use of the designation being the sponsor of the US Women's National Soccer Team. Interestingly, the court refused to grant the order, holding that the "Football Association had not acquired secondary meaning in the descriptive designation 'USA 2003.'" (234)

6.20 The ruling raises critical legal issues. The declaration of the designation as distinctive brings to bear the importance of trade mark owners showing alacrity not only in registering their marks but also in complying with registration requirements. Johnson advises that word marks comprising the event plus the year, the event and the location or the location and the year should be registered, (235) hence 'Commonwealth Games 2018,' 'Pan American Games Toronto' and 'Rio 2016' respectively. In the WORLD CUP 2006 OHIM (236) series of decisions (237), the cancellation division held that the fact that although the marks GERMANY 2006, WORLD CUP GERMANY, WORLD CUP 2006 and WM 2006 "were suggestive of the tournament does not mean that they are devoid of distinctive character. (238)"

6.21 By contrast, the registration of FUSSBALL WM 2006 was cancelled by the German Supreme Court who found it to be descriptive with regard to some goods. The court observed that the addition of the word FIFA would likely have pushed the word mark over the distinctiveness threshold. (239) In the FIFA v. Nike decision the 'USA 2003' designation was only descriptive and FIFA would have had to acquire a secondary meaning in that designation. To acquire a secondary meaning, the public would have had to recognise the 'USA 2003' mark as identifying FIFA as the trade source of any products bearing the mark, (240) thus arousing issues similar to those considered in the Arsenal v. Reed (241) decision. These are the obstacles faced when there is an attempt to register generic terms like 'World Cup' or 'Football' as FIFA itself would very well know.

6.22 Additionally, the ruling suggests that Nike's reputation as an aggressive marketer and habitual ambusher did not have any bearing on the court's decision. Nike's marketing strategy seems unique and unorthodox considering its abovementioned record of ambushes including Barcelona 1992, Atlanta 1996 and Cardiff 1999 as well as its unexpected stance to maintain its sponsorship relationship with Tiger Woods falling his fall from grace. Nike co-founder Phil Knight has gone as far as saying that scandal is "'part of the game' for companies signing endorsement deals." (242) The court in Nike therefore showed commendable conviction in separating Nike's reputation from the relevant legal principles.

6.23 In NCAA v. Coors Brewing Co., (243) Coors used tickets for the NCAA Men's Final Four Basketball tournament as prizes. The National Collegiate Athletic Association (NCAA) sued Coors alleging unfair competition and breach of a revocable licence. (244) The latter claim was based on ticket conditions prohibiting use as a contest prize, while the former claim was based on Coors' attempt to gain an association with the NCAA. (245) The case was settled before a ruling was given but remains historic because it pioneered ambush marketing cases involving tickets as prizes in the United States. (246)

6.24 If the Coors facts were judicially considered, contract law would have applied in the NCAA's favour in the US courts and in most other jurisdictions. The terms and conditions on tickets represent contractual terms which are binding on purchasers. The unfair competition claim, however, would not be easily resolved since its determination would depend on competition laws germane to the respective territories.

The significance of National Hockey League v. Pepsi (247)

"Indeed, there were times when it seemed that the plaintiffs were as much interested in persuading this Court to denounce the practice of what advertising executives refer to as "ambush marketing" as they were in the resolution of the legal issues in the case." (248)

6.25 This decision was one of many involving the same litigants. The key issues to be ventilated in the case were summarised by Hardinge J as passing off, and in the alternative, trade-mark infringement or interference with contractual relations. The court relied on the House of Lords decision in General Electric, as it found that although Pepsi's advertising campaign did constitute ambush marketing, there was "nothing in law that could be done to protect either Coke or the NHL in its endeavours to protect Coke from its main competitor" (249)

6.26 The dictum of Hardinge J. is telling as he elucidated: "It may be that due to Coke's failure to secure the right to advertise its product during the television broadcasts of NHIC and the securing of such rights by the defendant, the commercial value to Coke of the right to describe its product as the "Official Soft Drink of the NHL' has less commercial value than would have been the case if Coke had also obtained the right to advertise on NHIC. But that cannot diminish the defendant's rights." (250)

6.27 The decision strengthens the earlier arguments of Duthie and Leone that "saturation sponsorship" is not only practically prudent but also legally wise. Coca-Cola learned this lesson the hard way.

Case Law in Australia and New Zealand

6.28 Decisions from the Commonwealth nations have traditionally provide persuasive precedent for fellow Commonwealth countries. A key decision was that in In New Zealand Olympic and Commonwealth Games Association v. Telecom New Zealand (251), in which the plaintiff 's claim against Telecom New Zealand was three-fold: infringement of the Fair Trading Act 1986, passing off and Trade Mark forgery.

6.29 The Plaintiff sought interlocutory relief in the form of an interim injunction to prevent the Defendant from publishing a contentious advertisement. The views of Justice Mc Gedan are instructive where he noted that "Telecom's conduct is certainly of concern to the Olympic movement, but there is no proven inevitability of damage ... Telecom has been adventurous, perhaps unwisely so, but the Olympic Association, perhaps pushed by the competitor Bell South, may have been perhaps a little paranoid as to possible repercussions." (252)

6.30 The rationale of the judge in ruling for the alleged infringer, Telecom, was that the lack of proof of damage being inevitable was fatal to the Olympic Association's case. While he acknowledged concerns about Telecom's conduct, it was not far enough to be considered unlawful. The ruling highlights the need for an event organiser or rights holder to prove the risk of actual damage, whether financial loss, damage to reputation or confusion in the public mind that leads to decreased revenue. A concern or 'paranoia' about possible adverse ramifications is not enough.

6.31 The decision also highlights the role that official sponsors can play in influencing rights holders to initiate legal proceedings. Bell South, a rival of Telecom, saw the latter's association as a threat to its own commercial potential, even if it were only perceived. This places rights holders in a difficult situation as they seek to allay the fears of commercial partners while being legally prudent. It is why proactive anti-infringement measures are usually more effective than reactive measures, as evidenced in Australia during Sydney 2000 and Melbourne 2006.

In AOC v. Baxter & Co. (253) the Australian Olympic Committee (AOC) brought action against Baxter& Co. who sought to register the words "THE OLYMPIC" as a trade mark. The relevant legislative provisions were found in the Sydney 2000 Act. It was held that the mark did not fall foul of the Sydney Act so as to prevent registration under the Trade Marks Act. The 'Olympic' cases have been difficult to reconcile.

Conclusion

Judicial Inconsistencies

6.33 Michalos laments the inconsistencies that have arisen out of the 'Olympic' cases like Astral Olympic, Compulympics, and Family Club Belmont Olympic (254) in which OHIM permitted the registration of the mark "Astral Olympic' in the former case but rejected similar registrations in the latter cases. Even some judges have found it difficult to find consistency as the dissenting judgments of Justices O'Connor and Blackmun in SFAA v. USOC indicate. They viewed the Amateur Sports Act as "overbroad because it vested the USOC with unguided discretion" regarding the Olympic properties. This is not only indicative of the intricacies of IP law but the need for greater international harmonisation especially in Olympic-related litigation.

Chapter Seven - Conclusions and Recommendations

A. The Marks of Success

"At first look it would appear that recent events such as the 2006 Torino Winter Olympics or the 2004 Athens Summer Olympics were less targeted by ambushers, perhaps an indication of the impact of legislation" (255)

7.1 There is little disagreement that it is difficult to quantify whether rights owners have been successful in the anti-ambush battle. Reminiscent of the anti-doping movement is the fact that as counter-measures are initiated new ways of infringement are created. This is confirmed by the continuing advance in sophistication of ambushing measures.

B. Conclusions

7.2 It is submitted that the material assessed in this presentation necessarily leads to the following conclusions:

7.3 The law as it relates to ambush marketing is still very unsettled due to inconsistencies in definition of the practice and the application of the relevant law. Pertinent legal questions raised in the Australian Review remain largely unanswered, in particular the issue of how does regulation of ambush marketing operate when (a) existing law is either uncertain in its application or is very dependent on the facts of each case and (b) the law is in no way contravened.

7.4 The presentation also points to the fact that nations that are new to event hosting are likely to lose the battle against ambush marketers. The criticisms doled out to the Swiss government before Euro 2008 were typical for countries new to major event hosting. The accusation of compliance with governing bodies at the expense of others' rights is reminiscent of the very backlash received by the West Indies Cricket Board and Caribbean governments during Cricket World Cup 2007. The hosting of ICC Cricket World Cup in the West Indies was historic given the fact that it was the first sporting event of such magnitude being hosted in the Caribbean region. Many in the West Indies became acquainted with the term "ambush marketing" for the first time and in keeping with modern trends of major event hosting, the nine (9) host venues were mandated by the ICC to pass event-specific "sunset" legislation.

7.5 The legislation itself was strict on its face but this was not by the calculated and well-planned efforts of the organisers. The new hosts may just have been happy "to be there" Yet, this is not entirely surprising given the novelty of this scale of sports event to the Caribbean region and perhaps an innate pressure to "get it right" the first time around. This relative legislative strictness, however may have been the ideal fillip for a region that is still largely unfamiliar with the full commercial landscape regarding sponsorship, image rights and intellectual property law. In this regard, Schmitz was on point when he noted that "the practice of ambush marketing encourages organizers to work harder to thwart intellectual property violations, and raises the awareness of intellectual property rights globally-a long-term benefit to all intellectual property owners." (256)

7.6 Thirdly, the ambushers have been more successful than the ambushed. The anti-infringement programmes reviewed have had limited success as evidenced by the continued ambushing activity at 'mega events'. The recommendations below will offer a few solutions:

C. Recommendations

"In order to make any specific anti-ambush legislation workable, it is essential that it is simple and unequivocal." (257)

7.7 This logical approach to law-making is sometimes overlooked in the desire to be meticulous. The ESA expands on this useful recommendation by adding that anti-ambush laws should provide marketers with certainty and should incorporate fair and proportionate civil sanctions. (258) In this way the nebulous legal status of the ambusher and the ambushed will slower receive much needed clarity.

7.8 Greater forethought and advance planning is needed both by sponsors and event organisers. As Burton and Chadwick note: "While proactive strategies provide a foundation upon which to build, greater anticipation and sponsorship activation are fundamental to the successful defence against ambush marketing." (259) Too many anti-ambush campaigns have been reactive leaving rights holders to play catch up.

7.9 Finally, it is submitted that there should be a move towards the creation of a "World Anti-Ambush Code" of sorts. One of the latent benefits arising from the creation of the first World Anti-Doping Code in 2003 was the consistency and harmonisation brought to the fight against doping in sport. Extensive stakeholder consultation resulted in a working document that addressed a vast spectrum of needs expressed by athletes and regulators alike. A similar movement is recommended for the sports business industry, albeit on a scaleddown basis simply because the complexity of intellectual property law will make any major global Code on ambush marketing regulation difficult to harmonise. Perhaps, regional or continental Codes encapsulating IP, trade and advertising law will be a useful starting point. The business of sport demands as much creativity and innovation possible to keep thriving.

(1.) Federation Internationalede Football Association, the world governing body for football.

(2.) "Sport, Mediation and Arbitration"-Ian Blackshaw at page 3.

(3.) The International Olympic Committee negotiator for US television rights.

(4.) www.sports-city.org/news_details.php?news_id=10347&idCategory=33, December 16, 2009 accessed on December 24, 2009.

(5.) www.sports-city.org/news_details.php?news_id=10377&idCategory=1, December 18, 2009 accessed on December 28, 2009.

(6.) "Rights holder protection: how to combat the practice of ambush marketing"-C5 Online Sports Law & Business Conference, April 29, 2009.

(7.) Sport: Law and Practice"-Adam Lewis and Jonathan Taylor (second edition) at paragraph G 5.31.

(8.) Organised by the Commonwealth Games Association (CGA).

(9.) "Sports Business: Law, Practice and Precedents." (second edition)-Richard Verow, Clive Lawrence, Peter Mc Cormick at paragraph 6.2.

(10.) Ibid.

(11.) "Sponsorship: Strategies for Maximising the Return on Investment"-Executive Summary, Ardi Kolah.

(12.) "Companies could insure themselves against sponsor scandals"-http://www.sports-city.org/news_details.php?news_id=10378&idCategory=1, December 18, 2009 accessed on December 28, 2009.

(13.) DeWitt Stern, US insurance broker, ibid.

(14.) "Sponsorship Returns Good Business Value"-ESA Press Release-9 March 2009.

(15.) Ibid.

(16.) www.sportbusiness.com/news/169169/european-sponsorship-association-defends-sports-sponsorship, created by Kevin Mc Cullagh on April 8, 2009, accessed on April 9, 2009.

(17.) "Sports Law and Litigation" (secondedition)-Craig Moore, at page 55.

(18.) "Sport: Law and Practice"-Adam Lewis and Jonathan Taylor (first edition) at paragraph D 5.6.

(19.) "Sony Ericsson turns to new media for World Cup"-http://www.sportscity.org/news_details.php?news_id=10382&idCategory=33, December 18, 2009 accessed on December 28, 2009.

(20.) Ibid.

(21.) "Sport: Law and Practice"-Adam Lewis and Jonathan Taylor (second edition) at paragraph G 1.2.

(22.) The Essential Legal Guide to Events"-David Becker, Chapter 1 at page 7

(23.) VICTORIA Park Racing v. Taylor(1937) 58 CLR 479, HC of A.

(24.) Latham CJ at page 497.

(25.) [1917] 2 KB 125 (CA).

(26.) Ibid at page 127.

(27.) Lewis and Taylor, supra, at paragraph G 1.3 and Becker, supra, at page 7.

(28.) Clerk & Lindsell on Torts (19th edition), Chapter 1 at paragraphs 1-02 and 1-03.

(29.) "International Report on Question B: Ambush Marketing-Too Smart to be Good? Should Certain Ambush Marketing Practices be Declared Illegal and If Yes, Which Ones and under What Conditions?"-Pierre Kobel at p.7.

(30.) Union des Associations Europeennes de Football, the governing body for European football.

(31.) International Association of Athletics Federations, the world governing body for athletics.

(32.) "Phillip Johnson-International Sports Law Review, supra at page 24.

(33.) "Ambush Marketing in Sport: An Assessment of Implications and Management Strategies"-Nicholas Burton and Simon Chadwick.

(34.) Definition used by Jerry Welsh as quoted in "Ambush Marketing: A Practical Guide to Protecting the Brand of a Sporting Event"-Phillip Johnson at page 6, paragraph 1-14.

(35.) Lewis and Taylor, supra, at paragraph G 1.21.

(36.) Report from the State Secretariat of Economic Affairs.

(37.) "Switzerland: new legislative steps against ambush marketing"-Daniel Hufschmid-International Sports Law Review 3 (Aug) 77-78.

(38.) IOC Requirements on Brand Protection and Ticket Touting.

(39.) "The Essential Legal Guide to Events"-David Becker, page 14, paragraph 1.5.5.

(40.) "Ambush Marketing: New Zealand is in search of events to host"-Owen J Morgan, European Intellectual Property Review 2008, Volume 30 (11) at page 454-462.

(41.) "Ambush Marketing: A Practical Guide to Protecting the Brand of a Sporting Event"-Phillip Johnson at page 8, paragraph 1-18.

(42.) "Sports Law" (3rd edition) Simon Gardiner, John O'Leary, Mark James and Roger Welch, at page 458.

(43.) Johnson, supra, at note 41.

(44.) Becker, supra, at paragraph 1.5.5.

(45.) Morgan, supra, at note 40.

(46.) Phillip Johnson, supra, note 41 at page 6, paragraph 1-14.

(47.) "Ambush Marketing: What it is, what it isn't"-Jerry Welsh-http://www.poolon-line.com/achive/issue19/iss19fea5.html [accessed on April 9, 2009].

(48.) Ibid.

(49.) Johnson, supra at paragraph 1-16.

(50.) Burton and Chadwick, supra, note 33.

(51.) "Look out! It's an ambush!"-Phillip Johnson-International Sports Law Review 2/3.

(52.) Ibid.

(53.) Including David Becker, supra, at page 14.

(54.) Whitehead, Mark-"Ambushing the Ambushers"-Sports Law Administration and Practice, April 2000 at page 8.

(55.) Pierre Kobel, supra, note 29.

(56.) "The benefits of bidding"-Peter Mann, founding director, pmplegacy (Source: www.pmplegacy.com).

(57.) Ibid.

(58.) "Sports Law" (3rd edition)-Simon Gardiner, Mark James, Roger Welsh et al, at page 458.

(59.) Kelham, supra, op.cit. 3.

(60.) InternationalParalympic Committee.

(61.) Kelham, supra.

(62.) "Beijing introduces Ambush Marketing law for 2008 Olympics"-International Sports Law Journal 2003/1 p.29.

(63.) Brand Protection Council.

(64.) "Can China protect the Olympic Brand?"-http://www.bpcouncil.com/apage/printv/638.php [accessed on May 8, 2008].

(65.) IOC Requirements on Brand Protection and Ticket Touting, supra.

(66.) ibid.

(67.) 1957 Treaty establishing the European Economic Community (Treaty of Rome) amended by the Treaty of Amsterdam which came into force on May 1, 1999.

(68.) [1996] 4 CMLR 885.

(69.) Hendry v. World Professional Billiards & Snooker Association[2002] 1 ISLR SLR-1.

(70.) "Bidding for Major Sports Events: Key Issues and Challenges faced by Sports Governing Bodies in the UK"-Dr. Geoff Walters, Birkbeck Sports Business Centre, Research Paper Series, Volume 1, Number 1, September 2008 at page 4.

(71.) Rules of Conduct for all cities wishing to organise the Olympic Games-2010 and 2012 bid process to be found at http://multimedia.olympic.org/pdf/en_r eport_810.pdf.

(72.) 2012 Candidature Procedure and Questionnaire/Part 1/Chapter 1.5.

(73.) www.olympic.org.

(74.) The Nairobi Treaty on the Protection of the Olympic Symbol, adopted at Nairobi on September 26, 1981.

(75.) Johnson, supra, at paragraph 4-03.

(76.) "Five Golden Rings: development of the protection of the Olympic Insignia"-Christina Michalos, International Sports Law Review [2006] 3 (Aug) pp.64-76.

(77.) Johnson, supra, at paragraph 4-06.

(78.) 36 U.S.C. Section 220501-29.

(79.) Madrid 2016 Candidature File-Theme 4, Legal Aspects at page 69.

(80.) Chicago 2016 Bid Book at page 129.

(81.) Ibid.

(82.) IOC Evaluation Report at page 48.

(83.) Rio 2016 Bid Document at Theme 4, page 65.

(84.) The Glasgow 2014 Commonwealth Games Candidate City File-Summary Document at page 8.

(85.) Lewis and Taylor, supra, at paragraph G 1.150.

(86.) New Zealand passed its Major Events Management Act in 2007.

(87.) Includes FIFA World Cup, ICC Cricket World Cup, Olympic Games, Commonwealth Games and Pan American Games.

(88.) 2000 Sydney Summer Olympics and 2006 Melbourne Commonwealth Games.

(89.) 2003 ICC Cricket World Cup and 2010 FIFA World Cup.

(90.) 2011 Rugby World Cup and 2015 Cricket World Cup.

(91.) 2010 Vancouver Winter Olympics and 2015 Pan Am Games.

(92.) 2002 Manchester Commonwealth Games and 2012 London Summer Olympics.

(93.) "European Sponsorship Association position statement on ambush marketing"-wsD7D.tmp/draft/NEJ/07.09.04.

(94.) The list includes France, Argentina, Germany, the United States of America, Australia, Mexico, Austria, China, the Czech Republic and the United Kingdom.

(95.) Johnson, supra, at note 41.

(96.) "It's Not Just Cricket: Ambushing the Ambusher in South Africa"-Max Duthie, Sport and the Law Journal (SATLJ)-Volume 11, Issue 1, page 171 at page 173-4.

(97.) Term used by Richard Verow in "Sports Business; Law, Practice and Precedents" at paragraph 6.2.

(98.) NickBitel, London Marathon Chief Executive.

(99.) "Tips on how to successfully run a large-scale sporting event"-Nick Bitel, C5 Online Sports Law and Business Conference-April 29-30, 2009.

(100.) Duthie, supra.

(101.) Ibid.

(102.) Verow, supra, at paragraph 6.6.3.3.

(103.) Leone, supra, at page 77.

(104.) Duthie, supra, at note 96.

(105.) Leone, supra, at page 77.

(106.) "Let the Games Begin"-Pauline Dore-International Sports Law Review (2006) Volume 1 (May) 40-45 at page

(107.) Lewis and Taylor, supra, at paragraph H 2.8.

(108.) "London 2012-meeting the challenge of brand protection"-Terry Miller, International Sports Law Review (2008) Issue 4, pp 44-47.

(109.) Leone, supra, at page 77.

(110.) Ambush Marketing Legislation Review, October 2007-Prepared forIP Australia and the Department of Communications, Information Technology and the Arts (DCITA).

(111.) Ibid at paragraph 2.3.

(112.) Ibid at paragraph 4.3.1.

(113.) Ibid at paragraph 4.3.1.

(114.) Paris Convention for the Protection of Industrial Property.

(115.) ""Look out! It's an ambush!"-Phillip Johnson-International Sports Law Review 2/3, supra at page 25.

(116.) UK Trade Mark Act 1994 s.1(1).

(117.) Ambush Marketing Legislation Review, supra, at paragraph 4.3.1.

(118.) "Look Out! It's an ambush!" Phillip Johnson-International Sports Law Review 2008 2/3 Page 24-29.

(119.) Mouritz, supra.

(120.) Walrave & Koch v. Association Union Cycliste International [1974] ECR 1405.

(121.) Re: Dona & Mantero [1976] ECR 1333.

(122.) Union RoyalBelge des Societe de Football Association ASBL v. Jean-Marc Bosman [1995] ECR I-4292.

(123.) Detscher Handbalbund v. Kolpak (Case C-438/00) [2003] ECR I-4135.

(124.) Simutenkov v. Spanish Football Federation (Case C-265/03) [2005] ECR I-2579.

(125.) Meca-Medina & Majcen v. Commission (Case 519/04) ECR 2006 1-6991.

(126.) FA Premier League v. QC Leisure [2008] EWHC 1666 Admin.

(127.) Andrew Webster & Wigan Athletic v. Heart of Midlothian CAS 2007/A/1300.

(128.) The Court f Arbitration for Sport, the Matuzalem Decision, 19 May 2009.

(129.) Hendry v. World Professional Billiards & Snooker Association [2002] 1 ISLR SLR-1.

(130.) CaseC-49/07, 1 July, 2008.

(131.) Motoskyleetistiki Omospondia Elladus NPID.

(132.) "ECJ: Motoe decision"-World Sports Law Report-April 2009-Volume 07 Issue 04.

(133.) [1996] 4 CMLR 885.

(134.) Discussed further in Chapter 5 atparagraph 5.6 et seq.

(135.) Kobel, supra, op.cit. 52.

(136.) Verow, supra, page 84 at paragraph 3.6.5.

(137.) Ibid.

(138.) Lewis and Taylor, supra, at paragraph G 5.32.

(139.) "Ambush Marketing: Criminal Offence or Free Enterprise?"-Luisa Leone, International Sports Law Journal 2008/3-4, page 75.

(140.) "Sports Law"-Gardiner et al, supra, at page 351.

(141.) Ibid at page 76-77.

(142.) "United States: Ambush Marketing: protecting sport from brand hijacks"-Stephen P. Durchslag- World Sports Law Report, August 2007-Volume 5, Issue 8.

(143.) "Doping and fundamental rights of athletes: comments in the wake of the adoption of the World Anti-Doping Code"-Antonio Rigozzi, Gabrielle Kaufmann-Kohler, Giorgio Malinverni, International Sports Law Review 2003, 3 (Aug) pp 39-67 at page 41.

(144.) Durchslag, World Sports Law Report, supra, op.cit.134.

(145.) "Ambush Marketing: The Off-Field Competition at the Olympic Games"-Jason K Schmitz, Northwestern Journal of Technology and Intellectual Property, (Spring 2005) Volume 3, Issue 2.

(146.) Article 10, ECHR.

(147.) "Media Law"-Peter Carey and Peter Coles, Nick Armstrong and Duncan Lamont.

(148.) Laugh It off Promotion CC (trading asSabmark International) and another 2005 BIP 201 (CC).

(149.) Quoted at "South Africa: Ambush Marketing: sanctions and statelegislation"- Michael Murphy, World Sports Law Report, November 2009-Volume 7 Issue 11.

(150.) "Sports Law"- Michael Beloff Q.C., Tim Kerr, Marie Demetriou at paragraph 2.50.

(151.) "Switzerland: new legislative steps against ambush marketing"-Daniel Hufschmid, International Sports Law Review 2006 3 (Aug), pp.77-78.

(152.) "EURO 2008 demonstrates need to prepare for ambush marketing attacks"-[source: www.sportbusiness.com/news-June 25, 2008] [Accessed on August 6, 2008].

(153.) Ibid.

(154.) "South Africa: Ambush Marketing: sanctions and state legislation"- Michael Murphy, World Sports Law Report, October 2009-Volume 7, Issue 10.

(155.) Ibid.

(156.) Whitehead, Mark-"Ambushing the Ambushers"-Sports Law Administration and Practice, April 2000 at page 9.

(157.) "The Countdown begins", Legislative Comment-Mia Sudzum, Jason Rudkin-Binks, Entertainment Law Review 2007, Volume 18 (8), pp.253-257 at p.253.

(158.) Johnson, supra, op.cit. 45.

(159.) Ibid.

(160.) Ibid..

(161.) "Challenging the legal enforceability of the Vancouver 2010 Olympic Games' anti-ambush marketing provisions"-Abraham Mouritz-Sport and the Law Journal 2008, Volume 16, Issue 1, page 10

(162.) ibid.

(163.) Ibid.

(164.) Ibid.

(165.) Ibid.

(166.) Mouritz, supra.

(167.) Ibid.

(168.) Ibid.

(169.) Ibid.

(170.) Mouritz, supra.

(171.) SportsCity-"SAFA takes action against ambush marketing"-July 29, 2009.

(172.) Sports City, supra-"SAFA takes action against ambush marketing"-July 29, 2009.

(173.) "It's Not Just Cricket: Ambushing the Ambusher in South Africa"-Max Duthie, Sport and the Law Journal (SATLJ)-Volume 11, Issue 1, page 171.

(174.) Ibid.

(175.) Ibid.

(176.) Considered in Chapter 6.

(177.) "European Sponsorship Association position statement on ambush marketing"-supra, op.cit 88.

(178.) Quoted at Michael Murphy, supra, atWSLR, September 2009.

(179.) Murphy, supra, WSLR, November 2009.

(180.) Murphy at Note 176.

(181.) Ibid.

(182.) Quoted at Michael Murphy, supra, WSLR September 2009.

(183.) Ibid.

(184.) [2001] 1 All SA 538 (c).

(185.) Sport: Law and Practice (secondedition): Adam Lewis and Jonathan Taylor at page 1367 paragraph H 1.60.

(186.) Lewis and Taylor, supra, at para H 1.60.

(187.) Lewis and Taylor, supra, at paragraph H 2.9.

(188.) Ibid.

(189.) Ibid at paragraph H 2.16.

(190.) "London 2012-meeting the challenge of brand protection"-Terry Miller-International Sports Law Review (2008) Issue 4 page 44-47.

(191.) LOCOG's worldwide partners are Coca-Cola, Acer, Atos Origin, General Electric, Mc Donald's, Omega, Panasonic, Samsung and VISA. Its official partners are Adidas, British Petroleum, British Airways, Nortel, Lloyds TSB, EDF and BT.

(192.) Miller, ISLJ, supra.

(193.) Miller, ISLJ, supra.

(194.) Miller, ISLJ, supra.

(195.) Miller, ISLJ, supra.

(196.) LOGPGA 2006 Schedule 3, s.3 (1).

(197.) Lewis and Taylor, supra, at paragraph H 2.23.

(198.) Consultation Document on the Glasgow Commonwealth Games Bill, section 4.

(199.) Lewis and Taylor, supra, at paragraph G 1.150.

(200.) Section 7.

(201.) Kobel, supra, op.cit. 52.

(202.) Duthie, supra at page 171.

(203.) "Ambush Marketing: Steals the Show"-Abram Sauer, brandchannel-May 27, 2002.

(204.) Leone, ISLJ, supra.

(205.) Norman Mandel, Business Affairs Counsel, Coca-Cola,-Global Sports Law Conference, Cardiff, November 1999 and quoted at "Sports Law"-Gardiner et al, supra, at page 459.

(206.) Becker, supra, at page 14 footnote #23. 207

(207.) "Switzerland: new legislative steps against ambush marketing"-Daniel Hufschmid, International Sports Law Review 2006 3 (Aug), pp.77-78.

(208.) Gardiner et al, supra at page 459.

(209.) Ibid.

(210.) Austria, Belgium, Brazil, Finland, France, Germany, Hungary, Italy, Spain, Switzerland and the United Kingdom.

(211.) "Ambush Marketing-The Problem and the Projected Solutions vis-a-vis Intellectual Property Law-A Global Perspective"- Sudipta Bhattacharjee, Journal of Intellectual Property Rights-Volume 8, September 2003, pp 375-388.

(212.) Quoted in "ICC plea for stay on use of World Cup logo rejected"-December 4, 2002 [Accessed on January 1, 2010].

(213.) International Cricket Council Development International Limited, a company formed by the International Cricket Council.

(214.) Op cit. 159.

(215.) Amended by the Trade Practices Amendment Act 26 of 2001 and the Merchandise Marks Amendment Act 61 of 2002, respectively.

(216.) Ibid at s.9 (d) and s.15 A, respectively.

(217.) "South African Measures to Combat Ambush Marketing in Sport"- Steve Cornelius, International Sports Law Journal 2003/1 at page 38.

(218.) (2003) 26 PTC 245 (Del) quoted in Bhattacharjee, supra, op. cit. 158.

(219.) (2003) 26 PTC 228 (Del) quoted in Bhattacharjee, supra, op. cit. 158.

(220.) Bhattacharjee, supra, op. cit. 158.

(221.) Ibid.

(222.) Jason K Schmitz, Northwestern Journal of Technology and Intellectual Property, supra, op. cit. 137.

(223.) Ibid.

(224.) MasterCard International Inc. v. Sprint Communications Co. 1994 WL 97097 (S.D.N.Y. 1994).

(225.) Schmitz, supra, op.cit. 197.

(226.) This Act amended the 1978 Amateur Sports Rights Act.

(227.) Stop the Olympic Prison v. United States Olympic Committee, 489 F.Supp. 1112, 1120 (S.D.N.Y. 1980).

(228.) United States Olympic Committee. v. Union Sport Apparel, 220 U.S.P.Q. 526 (E.D.Va. 1983);

(229.) United States Olympic Committee v. International Federation of Body Builders, 219 U.S.P.Q. 353 (D.D.C. 1982);

(230.) United States Olympic Committee v. David Shoe Co., Inc., 835 F.2d 880 (6th Cir. 1987).

(231.) Schmitz, supra, op.cit. 197.

(232.) 295 F. Supp.2d 64, 68 U.S.P.Q.2d 1849 (D.D.C. 2003).

(233.) United States: Ambush Marketing: protecting sport from brand hijacks"-Stephen P. Durchslag, World Sports Law Report, August 2007-Volume 5, Issue 8.

(234.) Ibid.

(235.) Philip Johnson, supra, op. cit. 39.

(236.) Office for Harmonisation in the Internal Market.

(237.) October 28, 2005, Cases:(No. 215635), (No. 2153005) (No. 2152817) and (No. 2155521).

(238.) Ibid at paragraph 2-22 footnote 73.

(239.) Ibid at paragraph 2-23.

(240.) Lewis and Taylor, supra, op.cit.6 at paragraph G 1.114 footnote 3.

(241.) [2003] EWCA Civ. 696, considered in Chapter 5.

(242.) "Nike Chief backs Woods"- www.sports-city.org/news_details.php?news_id=10338&idCategory=31, December 16, 2009 accessed on December 31, 2009.

(243.) 2002WL 21431479 (S.D. Ind. 2002).

(244.) "Durchslag, World Sports Law Report, August 2007-Volume 5, Issue 8, supra.

(245.) Ibid.

(246.) Ibid.

(247.) Supreme Court of British Columbia, Case No. C 902104.

(248.) Dictum of Mr. JusticeHardinge, ibid.

(249.) Bhattacharjee, supra.

(250.) Hardinge J, as quoted in Bhattacharjee, supra.

(251.) Quoted in "Ambush Marketing Legislation Review, October 2007-Prepared forIP Australia and the Department of Communications, Information Technology and the Arts (DCITA)".

(252.) Ibid.

(253.) Quoted in Australian Legislative Review, supra.

(254.) All quoted inMichalos, supra.

(255.) Burton and Chadwick, supra, op. cit. 31.

(256.) Schmitz, supra, op.cit. 197.

(257.) ESA position statement, supra, op.cit no. 88.

(258.) Ibid.

(259.) Burton and Chadwick, supra, op. cit. 31.

by Jules Tyrone Marcus *

* The De Montfort University, Leicester LLM: Sports Law And Practice Project.
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