Are you an ambush marketer?
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Are you an ambush marketer?

At yesterday’s session on ambush marketing, lawyers and advertisers argued for a balanced approach to the problem, because many brand owners will find themselves on both sides of the debate.

Moderator Mona Lee from Hanol Law Offices in South Korea noted that one of the problems is that it’s difficult to define what ambush marketing actually is. The definition Lee found to be among the most neutral was surprisingly from Wikipedia, which defines the practice as the “marketing strategy wherein the advertisers associate themselves with and therefore capitalize on, a particular event without paying any sponsorship fee.”

Lee stated that the obvious concern is such large events are extremely costly to produce and it is important to protect the rights of sponsors who pay to be affiliated. The London Olympics for example cost about US$13.8 billion to produce, and in response the U.K. passed the London Olympic Games Act of 2006 to create lists of barred marketing terms and “safe zones” in which advertising was prohibited at specific times.

Be relevant

Steve Bernstein of the Bernstein-Rein advertising agency in the United States said that he is not convinced that ambush marketing is a serious issue, because good advertising must connect with consumers and speak to the concerns and happenings of the day. Large events such as the Olympics are inevitably a part of that.

“Every agency has a definition of what is good advertising, and ours is that it should be relevant, memorable, and disruptive,” he said. “We are trying to get as close to the conversation as we can.”

He cited a particularly successful campaign that Bernstein-Rein ran for Hostess Twinkies around the time of the London Olympics, which featured YouTube videos of individuals performing not-so-spectacular acts of athleticism. Though it used none of the phrases that would have violated the London Act and in fact featured a tongue-in-cheek “not a sponsor” disclaimer, the campaign was well received and successful in joining the conversation surrounding the Games.

Guidance needed in a fast moving world

Jaime Lemons of Nike in the United States told the audience that one frustrating aspect of ambush marketing restrictions, such as those surrounding the London Olympics and the World Cup, is that they are often vague and give little concrete guidance to advertisers. In other areas of law, Lemons explained, businesses concerned with unclear legislation may wait for a court decision to clarify the rules, but such an approach can take years.

“The problem with this is that we don’t have the luxury of waiting for court decisions to interpret these laws,” she said. “Being in the sporting goods business, we have to interpret it ourselves.”

Lemons also pointed out that Nike is one of the companies that is on both sides of this issue; there are some events that Nike will sponsor, but others such as the Olympics that they do not. Given these interests, she hopes that there can be clear rules on the matter.

Hurting yourself

Because many brand owners will find themselves on both sides of the ambush marketing line, panelists say that a balanced approach is necessary. Lee and Lemons pointed to INTA’s resolution on ambush marketing as an example of a good solution, with Lemons pointing in particular to its fair use provisions for use of non-distinctive terms.

Overly aggressive restrictions may also end up hurting an event’s popularity. Sahira Khwaja of Hogan Lovells in the U.K. noted that when the International Olympic Committee visited London just before the Games, some members were dismayed that there were so few signs and expressions of support around the city. One explanation given, Khwaja explained, was that because the ambush marketing laws were so restrictive and so highly publicized, many Games supporters were afraid of infringing the restrictions.

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