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Is there no such thing as bad publicity?

Though Budweiser was the official beer company sponsor of the 2010 World Cup, it was rival Bavaria that got all the attention.

The Dutch brewer received significant media coverage last year when a large contingent of women attended the Holland versus Denmark game in orange minidresses bearing its logo. The stunt led to arrests and charges by FIFA that the company had engaged in ambush marketing. As South African authorities attempted to sort out what led to the incident, the game was over. Bavaria, meanwhile, had made an impact.

“Ambush marketing is the type of thing where there’s no such thing as bad publicity,” Ayala Deutsch, NBA’s senior vice president and chief intellectual property counsel, said yesterday at the panel Trademarks in Sports: Ambush Marketing and Protecting Athlete Names and Images.

Indeed, brand owners are being increasingly creative in finding ways to benefit from the publicity of major sports events without being official sponsors. The Bavaria stunt falls under grassroots campaigns, while others have used sweepstakes, product giveaways and implications of association using indirect references or images.

But a balance has to be struck. Successful ambush marketing can confuse consumers, and make events less attractive to official sponsors—potentially reducing future revenues.

“This is not exclusively a consumer confusion protection issue,” Deutsch said.

To protect sponsors’ rights, many event organizers expect or require the host country to enact temporary laws on ambush marketing. In November last year, an INTA Board Resolution set out principles and guidelines that should be considered when countries consider adopting ambush marketing legislation in order to minimize any detrimental effects on existing trademark rights, other pre-existing rights, and fair uses.

In 2006, following the International Olympic Committee’s decision to stage the 2012 Games in London, the London Olympic Games and Paralympics Games Act was introduced. The law outlines what brand owners can and can’t do in their advertising. Companies that aren’t official sponsors, for example, can’t use “games” and “London” in the same advertisement. The Act is “unique, new and different—some might say draconian,” said Jeremy Dickerson of Burges Salmon in the UK.

Because the effects of ambush marketing tactics often outlast the events they’re connected with, the challenge for authorities is enforcing the rules. “This has to be done very, very quickly,” Dickerson said. “One day would be too long, an hour about right.”

“I wish them luck getting that done quickly,” he added, drawing some laughs from the crowded room.

And the risk for events organizers is that too much enforcement can backfire, as they are accused of being heavy-handed, as Ross Parsonage, of Rouse in Beijing, explained. But, he added: “If the law isn’t not used against the large brand owners who are ambushing, why have it?”

As brand owners prepare for the London Olympic Games, they may look to Beijing 2008 for reference. Speedo and Puma both gained coverage on the heels of the successes of the athletes wearing their lines, despite not being sponsors. Perhaps the most iconic image of the Games was of Chinese gymnast Li Ning running across an unscrolling screen to light the torch. He, by the way, helms a major athletic company. “Ambush marketing has changed, and it’s no longer about fixed outdoor advertising,” said Parsonage.

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