Abstract
This, the final chapter, will contain some conclusions regarding the legitimacy of anti-ambushing laws and of the mega-event commercial monopoly. It will briefly summarise the objections raised in the preceding chapters and will include some suggestions for addressing the problems that currently exist. This chapter will also briefly examine expectations for the future regarding ambush marketing and sports mega-events. It will examine a seemingly unrelated (although, arguably, very relevant) development in one specific jurisdiction, which, it will be submitted, may hold significant implications for this ongoing process of ever-increasing monopolisation of events. The discussion will speculate as to what extent such development might serve to create a precedent or a model for international sports organisations to claim a ‘proprietary right to a spectacle’ in the future, and how this might contribute to the further monopolisation of events and of ring-fencing of the commercial and other value of such events. On the other side of the event organiser/ambush marketer divide it will also briefly consider future prospects for mega-event ambushing primarily with reference to the use of the Internet and, more specifically, social media, as well as examining the changing nature of the ‘modern ambush’. The latter sections of the chapter will include some suggestions to address the problems identified in the book, with the hope of inviting debate and to serve as a basis for development of further and more meaningful ideas on how to address the problems that currently exist in the sports mega-event milieu. This chapter will conclude with some observations regarding possibly problematic aspects of the fundamental premise of the current ambush marketing legal discourse.
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Notes
- 1.
Schwab 2006, p. 9.
- 2.
Hoek and Gendall 2002, p. 87.
- 3.
Skildum-Reid 2007, p. 28.
- 4.
Owen Dean, legal advisor to FIFA in respect of the 2010 FIFA World Cup South Africa, quoted online in a piece entitled ‘A perspective of intellectual property’—available online at the time of writing at http://www.brandsandbranding-online.co.za/a-perspective-of-intellectual-property-dr-owen-dean/comment-page-1/.
- 5.
See the report by Amanda Andrews in The Telegraph, 28 March 2009—available online at http://www.telegraph.co.uk/finance/newsbysector/mediatechnologyandtelecoms/5067045/Advertising-agencies-withdraw-from-2012-Olympics-contract-over-sponsorship-fee.html.
- 6.
Weissman, R ‘The commercial Games: How commercialism is overrunning the Olympics’, 17 August 2008—available online at http://www.corpwatch.org/article.php?id=15164.
- 7.
Leone, L ‘Ambush marketing: Criminal offence or free enterprise?’ Asser International Sports Law Centre (2008)—available online at the time of writing at http://www.thefreelibrary.com.
- 8.
Ries and Ries 1998—summarised version available online at http://www.portugaliza.net/num06/The_22_Immutable_Laws_of_Branding.pdf.
- 9.
Ibid.
- 10.
Burrell and Gangjee 2010, pp. 12–13.
- 11.
From a report entitled ‘IRB boosts RWC bidding process’, 26 November 2008, available at the time of writing on the IRB Rugby World Cup 2011 website at http://www.rugbyworldcup.com/mediazone/news/newsid=2027812.html.
- 12.
The elegantly titled ‘The benefits of hosting FIFA’s other World Cups’, available online at the time of writing at http://www.fifa.com/mm/document/affederation/biddingforotherevents/01/30/02/09/bidcollateralbrochure_sebcs4.pdf.
- 13.
Ellis et al. 2011, p. 305.
- 14.
Lionel Hogg, writing in Skildum-Reid 2007, p. 131.
- 15.
With apologies for borrowing, and misquoting, the widely misquoted line from John Huston’s The Treasure of the Sierra Madre Warner Bros. Pictures (1948).
- 16.
Barros et al. 2002, p. 128.
- 17.
Louise van Greunen, speaking at the New Horizons for Intellectual Property conference (on the occasion of the establishment of the Anton Mostert Chair in Intellectual Property), University of Stellenbosch, 1–2 September 2011.
- 18.
Recommendation 45 commits the organisation ‘To approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns, with a view that “the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations”, in accordance with Article 7 of the TRIPS Agreement.’
- 19.
Scaria 2008, p. 45.
- 20.
Merchandise Marks Act, 17 of 1941 (as amended), in section 15A(1)(b).
- 21.
Corbett and Van Roy 2010, p. 341.
- 22.
Longdin 2009, p. 730.
- 23.
Longdin 2009, p. 729.
- 24.
Johnson 2008, p. 29.
- 25.
Scassa 2011, p. 365.
- 26.
Compare Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) C.L.R. 479; Australian Broadcasting Corp v Lenah (2001) 208 C.L.R. 199. See also Wise 1996.
- 27.
See National Hockey League v Pepsi-Cola Canada (1995) 122 DLR (4th) 412.
- 28.
Victoria Park Racing supra at 497 (a case where the owner of a residential property adjacent to the plaintiff’s racecourse allowed a radio broadcaster to erect a scaffolding tower on his front lawn, from where the broadcaster could view races and broadcast commentary).
- 29.
On the basis of the US Supreme Court judgment in International News Service v Associated Press 248 US 215, 63 L Ed 211, 39 S Ct 68 (1918); Pittsburgh Athletic Co v KQV Broadcasting Co 24 F Supp 490 (WD Pa 1937)—see also the judgment of the court of first instance in National Basketball Association and NBA Properties Inc v Sports Team Analysis and Tracking Systems Inc 939 F Supp. 107 (SDNY 3 September 1996) [overturned on appeal by the Second Circuit Court of Appeals in New York—105 F 3d 841 (2d Cir 1997)]; Lewis and Taylor 2003, pp. 405, 583 and 679; Johnson 2007, pp. 2–3.
- 30.
See Rohsler and Baudriller 2009.
- 31.
Law 84-610 (16 June 1984).
- 32.
‘Les fédérations sportives, ainsi que les organisateurs de manifestations sportives … sont propriétaires du droit d'exploitation des manifestations ou compétitions sportives qu'ils organisent.’
- 33.
Which is further regulated in Articles L 333-2 to L 333-5 and Article R 333.
- 34.
See ACO and ASAACO vs. Dragoon Editions, CCE Tribunal de Commerce de Nanterre, 12 December 2002, implicitly confirmed in FFT vs Hospitality Group Tribunal de Grande Instance of Paris, 28 January 2004 (see Kobel 2007, p. 19); see also discussion of the FFT/Unibet matter in the text below.
- 35.
See, for example, the Supplementary Regulations of the Le Mans 24-Hour event held in April 2009, where the provision dealing with the royalty-free granting of image rights/rights to sound recordings by competitors to the organiser, Automobile Club de l’Ouest (or ACO), contained a specific proviso that ‘[t]he authorisation of use of the Images and Sounds granted by the Competitor hereby is fully and totally independent from the ACO’s right to operate the events and sporting contests it organises, in accordance with Article L. 333-1 of the French Sport Code.’
- 36.
Fédération Française du Tennis.
- 37.
In the judgment of the President of the court in the Tribunal de Grande Instance de Paris, 30 May 2008. The tort of parasitism has been described as follows:
‘The French jurisprudence created a parasitism doctrine on the basis of public liability principles. The theory of parasitism is applicable to whoever takes advantage of another’s representation without authorisation. It is applicable even if the victim is not a competitor. The reputation of the sport event itself is apparently protected. That theory was successfully applied in several sports related cases.’ Kobel 2007, p. 32.
- 38.
The judgment of the Cour d’appel de Paris, 14 October 2009.
- 39.
The Report on the Integrity of Online Gambling [2008/2215 (INI)] issued by the Committee on the Internal Market and Consumer Protection.
- 40.
European Commission Green Paper on Online Gambling in the Internal Market SEC (2011) 321 final, 24 March 2011—copy available online at http://ec.europa.eu/internal_market/consultations/docs/2011/online_gambling/com2011_128_en.pdf.
- 41.
The Green Paper at 32.
- 42.
Ibid.
- 43.
Decree No. 2010-614 (relating to trade agreements connected to betting operations in relation with sporting events).
- 44.
See the report by Manasterski, A and Camilleri, M ‘Corruption in Sports: The French Position’, 24 January 2011—available online at http://www.gaminglaw.eu/news/corruption-in-sports-the-french-position/.
- 45.
Bretonniere, J F ‘Building and Enforcing Intellectual Property Value 2011’ (at 107)—available online at http://www.iam-magazine.com/issues/Article.ashx?g=110c2250-d9a7-411f-bbfb-fb82921bd71e.
- 46.
Ibid. 108.
- 47.
Kortekaas, V ‘Digital “ambush marketing” threatens Games’, 9 October 2011, Financial Times—available online at the time of writing at http://www.ft.com/intl/cms/s/0/f1879b92-ee78-11e0-a2ed-00144feab49a.html#axzz1dg1w0GLD.
- 48.
Ibid.
- 49.
Available online at the time of writing at http://www.olympic.org/Documents/Games_London_2012/IOC_Social_Media_ Blogging_and_Internet_Guidelines-London.pdf.
- 50.
Alex Burmaster, as quoted in Klayman, B ‘Ambush marketing gives Nike leg up for World Cup’, 11 June 2010—available online at http://www.reuters.com/article/2010/06/11/us-soccer-world-nike-idUSTRE65A5AO20100611.
- 51.
A blog posting dated 4 March 2010, available online at http://www.sinotechblog.com.cn/index.php/component/content/article/48-direct-marketing/563-can-ambush-marketing-actually-work-online.
- 52.
- 53.
- 54.
Fortunato and Richards 2007, p. 48.
- 55.
- 56.
Ibid.
- 57.
Cotteringham, R ‘Is it ambush marketing, or conversation?’, 23 June 2010—available online at http://www.socialsignal.com/blog/rob-cottingham/it-ambush-marketing-or-conversation.
- 58.
Ibid.
- 59.
Marcus, Y ‘Facebook, not fighter jets, can topple Iran’s regime ‘, 18 February 2011—available online at http://www.haaretz.com/print-edition/opinion/facebook-not-fighter-jets-can-topple-iran-s-regime-1.344135.
- 60.
Becker 2006.
- 61.
David Becker, from personal e-mail communications with the author, December 2011.
- 62.
Ibid.
- 63.
Ibid.
- 64.
Ibid.
- 65.
Sutherden 2011, p. 313.
- 66.
See, for example, Storch, J ‘It’s an ambush! Or is it?’ Marketing, 17 May 2010—available online at http://www.macleoddixon.com/documents/Storch.pdf:
‘When “The Olympic and Paralympic Marks Act” was tabled in 2007 there were breathless media reports about attempts to protect words such as “Winter” “Gold” and “Sponsor.” Few of the media reports clarified that VANOC would only object to these words if used in a manner that would mislead, or be likely to mislead, the public that the user had a business association with the Games. VANOC’s approach (after a rocky start in shaming Esso out of a hockey-based campaign around the time of the 2006 Torino Games) was educational and consultative and even included an ambush evaluation method with samples of what would be judged offending. This was a unique piece to Olympic ambush marketing that no other organising committee had ever contemplated, and resulted in keeping VANOC out of legal battles and their sponsors mostly happy. VANOC realized that amateur sport and its sponsors existed long before the Games came to Vancouver and VANOC would not be leaving much of a legacy if corporate Canada was not encouraged to invest in sport post-2010.’
- 67.
See Scassa 2011, p. 361.
- 68.
Fortunato and Richards 2007, p. 48.
- 69.
McKelvey and Grady 2008, p. 573.
- 70.
Johnson 2008, p. 29.
- 71.
J. Tyrone Marcus suggests the following:
‘[I]t 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 scaled-down 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, commercial and advertising law will be a useful starting point.’ Marcus 2010, p. 37.
- 72.
In a short paper delivered at the Law, Policy and the Olympic Movement conference, Ithaca College, London, 13–14 May 2010. I wish to thank the author for providing me with a copy of this unpublished piece.
- 73.
Which was published in Afrikaans in a local South African electronic journal (I am told that an English version of the work will soon be published).
- 74.
Scassa 2011, p. 363.
- 75.
ICC Development (International) Ltd. v Ever Green Service Station & Another 2003 IIAD Delhi 707, 102 (2003) DLT 723 (from par. 2 of the judgment).
- 76.
Storey 2010, p. 48.
- 77.
Ibid.
- 78.
Scassa 2011, p. 363.
- 79.
Marina Palomba, general legal counsel at McCann Erickson World Group, and former legal director of the UK’s Institute of Practitioners in Advertising.
- 80.
As quoted in Smith 2011, p. 45.
- 81.
Scassa 2011, p. 368.
- 82.
See the discussion of the views of David Becker in Sect. 10.3.3.
- 83.
Schwab 2006, p. 9.
References
All internet-based sources referred to, were last visited in or before December 2011.
Barros CP, Ibrahimo M, Szymansky S (2002) Transatlantic sport: the comparative economics of North American and European sports. Edward Elgar Publishing, Northampton
Becker D (2006) The essential legal guide to events. Dynamic Publishing Ltd, London
Burrell R, Gangjee D (2010) Trade marks and freedom of expression: a call for caution. The University of Queensland, TC Beirne School of Law, Legal studies research paper series No. 10-05
Corbett S, Van Roy Y (2010) Events management in New Zealand: One law to rule them all? J Bus Law 4:338–362
Ellis D, Scassa T, Seguin B (2011) Framing ambush marketing as a legal issue: an Olympic perspective. Sport Manag Rev 14(3):297–308
Fortunato JA, Richards J (2007) Reconciling sports sponsorship exclusivity with antitrust law. Texas Rev Entertain Sports Law 8:33
Hoek J, Gendall P (2002) Ambush marketing: More than just a commercial irritant? Entertain Law 1(2):72–91
Johnson P (2007) Ambush marketing: a practical guide to protecting the brand of a sporting event. Sweet & Maxwell, London
Johnson P (2008) Look out! It’s an ambush. Int Sports Law Rev 2/3:24–29
Kobel P (2007) 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? International report to the international league of competition law, Catania Congress 2007
Lewis A, Taylor J (2003) Sport: law and practice. Cavendish Publishing, London
Longdin L (2009) Public law solutions to private law problems: major event regulation subverts IP’s internal balance. J Intellect Prop Law Pract 4(10):726–742
Marcus JT (2010) Ambush marketing: an analysis of its threat to sports rights holders and the efficacy of past, present and proposed anti-infringement programmes. Sport Law J 18(1):25
McKelvey S, Grady J (2008) Sponsorship program protection strategies for special sport events: are event organizers outmaneuvring ambush marketers? J Sport Manag 22:550–586
Ries A, Ries L (1998) The 22 immutable laws of branding. HarperCollins Publishers, Inc, New York
Rohsler C, Baudriller M (2009) Creation of a “right to offer bets”: analysis. World Sports Law Rep 7:10–11
Scaria AG (2008) Ambush marketing: game within a game. Oxford University Press, Oxford
Scassa T (2011) Ambush marketing and the right of association: clamping down on references to that big event with the all the athletes in a couple of years. J Sport Manag 25:354–370
Schwab F (2006) FIFA’s trademark tactics. World Trademark Rev 6. http://www.worldtrademarkreview.com/Issues/Articles.aspx?g=faf17b21-f89a-473e-949c-bc1b25b93bad
Skildum-Reid K (2007) The ambush marketing toolkit. McGraw-Hill, Sydney
Smith A (2011) Ramping up trademark protection at the Olympics. World Trademark Rev 33:42–46
Storey S (2010) Pilfering, piracy and prevention: developments in combating ambush marketing. Sport Law J 18(1):40–52
Sutherden A (2011) Laying the law down on ambush marketing. J Spons 4(4):311–313
Wise A (1996) A‘property right’ in a sports event: views of different jurisdictions. Sport Law J 4(3):63
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Louw, A.M. (2012). Conclusions. In: Ambush Marketing & the Mega-Event Monopoly. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-864-4_10
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