AMBUSH MARKETING - A GROWING TACTIC IN TODAY'S TIME

 INTRODUCTION

Ambush Marketing, a term which has been the talk of the town in various mega events across the world, refers to a marketing strategy wherein rival companies associate themselves with a particular event which already has another official sponsor(s). The term Ambush Marketing was first coined by marketing strategist Jerry Welsh from American Express Company in the 1980s. The word 'ambush' has a dictionary meaning which means - "an act or instance of attacking unexpectedly from a concealed position". It is thus a concept where the advertisers engage themselves in a particular event for the promotion of their own goods and services by showcasing their creative ideas and efforts but without paying any kind of sponsorship fee to the organizers of that particular event. It is a planned and creative technique used by organizers for promotion of its goods and services.

 EVOLUTION OF AMBUSH MARKETING

The first case of Ambush Marketing was witnessed in 1984 Olympics when Kodak sponsored TV broadcast of the games as well as the US track team even though Fuji Photo Film company of Japan was the official sponsor. In the same event Nike, was also seen campaigning for its products even though the official sponsor was Converse. Thereafter, during the summer Olympics held in the year 1988 at South Korea, Kodak was the official sponsor of the games, however, Fujifilm sponsored the games through an internal committee in South Korea. Although, Ambush marketing was first observed in Olympics games, however, it did reached in other sports events also like FIFA world cup, Super Bowl, UEFA Championships, Cricket World cup, etc. The reason behind the rapid growth of Ambush Marketing cases is due to its time and cost effectiveness. The brand owners don't have to follow-up time and again with the event organizers to associate themselves with the particular event and also don't have to incur huge cost that has to be paid to the event organizers. Further, the Ambushers also save the money spent in promotion and publicity of the goods and services by way of Print and electronic media, digital marketing, advertisement, etc. They are free to explore their creativity without any kind of restrictions and in return also get the desired result they wish to acquire. Presently, Ambush Marketing is one of the important area to be taken into consideration for the infringement of the Intellectual Property and yet there are majority of countries which do not have any specific law to stop such illegal practises. Ambush Marketing is not only a result of rivalry between the different brand owners but rather it is a smarter way to seek attention and acquire the goodwill for one's brand/ products without spending the required amount on money to gain such huge popularity. As there does not exist any particular law to stop such practise, it is done on a large scale. The mega events like Olympics and World Cup rely majorly on the sponsorships collected from various brand owners and in return they are given exclusive rights and recognition to promote their brand. However, by way of Ambush Marketing, the brand owners who have not invested that huge amount, still gets recognition and are able to promote their brand on such large scale by way of their creative tactics.

 AMBUSH MARKETING IN INDIA

In India, the first case of Ambush Marketing was witnessed during the 1996 World Cup, wherein Pepsi was seen campaigning with the tagline "Nothing official about it" although the official sponsor for the tournament was Coca-Cola. Since then, there have been various instances, where such practise can be clearly seen. The Indian public also witnessed the Ambush advertisements on few of the hoardings in Mumbai. It was when the Jet Airways came up with a campaign saying "We've Changed" and on the other side, Kingfisher Airlines came up saying "We've Made Them Changed". These two were further ambushed when Go airways came up with a hoarding mentioning that "We've Not Changed. We Are Still The Smartest Way To Fly".

We've Changed

Another case was observed when Procter & Gamble, a multinational consumer goods corporation, launched an ad campaign for its shampoo brand named 'Pantene' with a tagline "A Mystery Shampoo, Eighty Percent women say it is better than anything else." However, a few days later, Hindustan Unilever, another consumer goods company, launched its shampoo brand 'Dove' with a tagline "There is no Mystery. Dove is the No. 1 shampoo". It was thus a clear case of Ambush Marketing wherein the ad campaign of 'Pantene' was ambushed by 'Dove'.

There is no Mystery. Dove is the No. 1 shampoo

Considering the fact that Ambush Marketing cases are occurring in India too, at present there exists no specific Anti-Ambush Marketing laws which strictly prohibit such practise. Although, there have been discussions over the past few years to host Olympics games or other mega sports events, but as of now there is no specific law and regulations laid down, which strictly prohibit Ambush Marketing.

However, as per the Trademarks Act, 1999, if a company uses registered trademark of a rival company or the official sponsor of an event, then an infringement action or passing-off action can be initiated against such company under the Trademarks act, 1999.

Further, The Copyright Act, 1957 provides remedy to prohibit Ambush Marketing in a limited manner. When original work of a person is violated, without the permission of the owner or license by third party, then in such cases, The Copyright Act, 1957 gives the owner a privilege to enjoy the rights over his work to reproduce, perform or publish and when the other party does the same without licence, and then it amounts to Copyright Infringement.

Given below are few case studies in this context:

  • 1. ICC Development v. Evergreen Service Station : The Delhi High Court in this case granted an injunction against misuse of the ICC logo by the defendants and preventing them from using the logo of 'ICC World Cup 2003' which consist of black and white stripes and the mascot 'dazzler' holding these to be the artistic work protected under section 2(c) of the Copyright Act, 1957.
  • 2. ICC Development v. Arvee Enterprises and Anr : In this case, it was observed that the plaintiff in order to find success in his claim must prove that there was 'likelihood of confusion' in public minds, that the defendants were sponsors or licensee of world cup. In the said case, the court rejected the application on the ground that the logo of the ICC was not misused and that there was no scope of assumption that there was a connection between defendant and official sponsors of the event.
  • Ambush Marketing came in limelight with the increase in world- wide sports activities and mega events. Such practices are affecting the rights of various stakeholders to a much larger extent and for the said reason various suggestions have been made in order to implement specific laws/regulation to stop such practice. Countries like South Africa, Australia, England, China, Brazil, New Zealand and Canada have already enacted laws/ regulations to that effect. Having said that, in India, there is no such law enacted to avoid Ambush Marketing and therefore, it makes it difficult for the right holders to initiate legal action against the Ambushers. Such practises also affects small businesses and start-ups who tend to show some or little interest in promotion and advertisement of their goods and services while paying the sponsorship fees. While enacting a specific law to prevent Ambush Marketing may take some time, however, finding a solution protecting the rights of the sponsors may lead to abolishment of such practise.