Advertising may be considered as one of the effective means to sell goods and products to the public. It is through advertising that the seller may introduce its product to its target buyers and to encourage or to persuade its audience to purchase or acquire the product. The goal of advertising is to increase the support of the public to their products associating the goods with certain image and qualities popularly known to them. Advertisement are usually viewed via different forms of media including newspapers, magazines, television commercials, radio advertisement, blogs, websites and most importantly, outdoor and public events such as sports events.
Commonly, major events are sponsored by products carrying their brand names. Sponsoring sporting events help and promote both the sport itself and the brands or the sponsors in promoting their products. Promoting the products may be done in different modes such as sponsorships of teams and athletes, broadcast in televisions and associations or even advertising the venue. In this sense, the loyalty of both the athletes and their fans may be ensured by the brands promoting the said event. The brands may be recognized through famous players while they wear or use their products during each game. Also, the said sponsors is included in every advertisement material released by the organizers of the events. In the popular culture, examples of such events include the Super Bowl, the Olympics and the FIFA World Cup.
The privilege of sponsoring such events is usually borne out of contracts between the organizers of the event and the products. As a result, the two parties will set out conditions and rules that may benefit one another. The common condition is that the sponsors pay to support the event itself in exchange of exclusive advertising of their products.
However, it is inevitable that certain brands may take advantage of promoting their products without entering a sponsorship contract with the organizers of the event. Studies call this act as “ambush marketing”. It is commonly described as the act of a brand or tradename to associate itself with the event without paying the rights to do so, commonly done by a rival brands of the sponsors. These brands commonly break the rules that aims to give the true sponsors the exclusivity of the benefits of sponsoring the event.
Ambush marketing comes in different forms and is manifested with different intentions. One is to attack the rival product with the aim of deceiving and confuse the public on who are the official sponsors of the event. Another one is the act of a brand carrying a trademark name by using a legitimate link or connection instead of becoming an official sponsor of such event. One way of doing it is to sponsor the outfit or apparels of a certain athlete even if such brand is not an official sponsor of the event. Another mode is to make use of the logos, references, words or symbols normally and popularly associated with a certain event, which, in effect, confuses and deceives the public in believing that such product is associated with the event intended to be hi-jacked..
In the history of sports, many incidents of ambush marketing have been recorded. For instance, in the 2006 FIFA World Cup, fans were asked to remove the Bavaria Brewery sponsored apparel of the Netherlands National Football Team and orange-colored shorts distributed to fans because it is not the official beer sponsor of the event. This incident was repeated by Bavaria Brewery at the 2010 FIFA World Cup wherein female fans were ejected from the game.
Also, in the same year of the FIFA World Cup, A South African budget airline with the trademark name, Kulula, published an advertisement claiming themselves as the “Unofficial National Carrier of the You-Know-What”, showed images of stadiums and national flags-symbols associated to FIFA and even announced that it offers free flights to anyone bearing the name of the FIFA president, Sepp Blatter.
The most recent is the incident in the 2012 Summer Olympics in London. The organizers of said event demanded the removal of advertisement of a betting company carrying the brand name of Paddy Power, which announced that it is the sponsor of the “largest event in London this year”. Paddy Power claims that the said event was not meant to pertain to the Olympics, but to an egg-and-spoon race to be held in London, France.
In response to these problems, many countries have formulated laws to make ambush marketing illegal. Two laws in South Africa were passed containing prohibitions and rules against the act of ambush markering. Also, the South African Advertising Standards Authority (ASA) lists, as part of their code, unacceptable practices and acts which are prejudicial to marketing strategies.
Another law is the Trade Practices Act, No. 76 of 1976 prohibiting any person in making, publishing or displaying false and misleading statements, communication or advertisements implying certain connection or association between that person and the event or any of its organizers.
Also, in the landmark ruling of Fifa v Metcash Trading Africa, Case No. 53304/07 TPD decided on October 1, 2009, the High Court of South Africa ruled in favor of FIFA. In this case, FIFA launched proceedings against Metcash when the latter refused to stop from selling of lollipops marketed under the name of “2010 Pops”. The packaging of the product carries images of soccer balls similar to the design of the “Official Ball” of previous FIFA World Cups and the South African Flags. FIFA claimed that Metcash took advantage of the publicity of the 2010 FIFA World Cup, thus constituting ambush marketing.
Also, it is argued in this case that to rule in favor of Metcash would greatly prejudice the organizers of the event as it relies on sponsorship fees of the real sponsors. In effect, these sponsors will refuse to sponsor such event knowing that the benefit of being associated with the event will not be deemed as exclusive and that other brands, which did not, in fact, paid the required fees will be allowed to obtain the same benefits.
It was also emphasized that the FIFA was declared as a “protected event” under the Merchandise Marks Act No. 17 Of 1941 as early as 2006. The Merchandise Marks Act of South Africa renders it unlawful for any unauthorized person to use a certain trademark in connection with a protected event in a manner deemed to achieve publicity and benefits of sponsorship, without the duty of sponsoring such event.
On the other hand, Metcash argued that it has been an active sponsor of a grassroots soccer programme and that the product was intended for such programme. It also prayed that the Merchandise Marks Act should be interpreted with consideration on the right of freedom of expression.
The Court based its decision, favoring FIFA, on the ground that the use of such images is intended to deceive and confuse the public, which poses as the limitation of the right to freedom of expression.
Will any of these instances apply in the Philippines? In a sports-event sponsored by certain brands, can a spectator or anyone for that matter, endorse or promote brands other than that of the sponsors? Will it violate the Philippine Trademark Law or other Laws for that matter?
In these modern times, Filipinos have gained interest in sports. Trademarked brands have played important roles in keeping events on-going and may be considered as the “lifeblood” of most sporting events in the country. For instance, certain brands has acquired rights over the sponsorship of the teams and sporting arenas in the country. Also, trademarked brands have sponsored the apparels of the athletes and these brands have successfully been associated to these sports to the point that the teams are named after the brands themselves.
Thus, it is of utmost importance that the issue on ambush marketing must be tackled and addressed. In answering the questions stated above, my stand would be leaning to the answer that yes, the act of endorsing or promoting other brands other than that of the sponsors of a public event with the intention of deceiving or causing confusion to the public, would indeed be violative of our laws.
As I do my research on the laws of the country regarding ambush marketing, it appears like the Philippines has not yet passed any law specifically addressing the said issue. However, it is fair to state that several laws have somehow touched the issue of protecting the rights of the brands.
The Civil Code of the Philippines emphasizes in Chapter 2, Article 19 that every person must “act with justice, give everyone his due and observe honesty and good faith. Also, Article 20 of the same states that, every person who willfully or negligently causes damage or injury to others in any manner that is contrary to morals, good customs or public policy, is liable to the latter. Most importantly, Art 22 of the same chapter of the Code states that every person who “acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him”. Finally, Article 22 of the Civil Code prohibits any acts that would allow unjust enrichment of a person in the expense of the other.
To explain my stand clearly, the act of ambush marketing doesn’t show a situation wherein the brand, which is not a sponsor of the event, is acting in good faith. There is then motive or intention of deceiving the public into believing that the event is associated to the goods or product they make. The act causes damage and injury to others and is contrary to good customs and public policy as it violates the principles of fairness and justice. Thus, in this case, the law must be interpreted in favor of the aggrieved party.
Another law that supports my stand is the Republic Act No. 7349, also known as the Consumer Act of the Philippines. Article 110 states:
ARTICLE 110. False, Deceptive And Misleading Advertisement – it shall be unlawful for any false, deceptive or misleading advertisement by Philippine mail or in commerce by print, radio, television, outdoor advertisement or other medium for the purpose of inducing of which is likely to induce directly or indirectly the purchase of consumer products or services.
The second paragraph of the article describes how to determine a false, deceptive and misleading advertisement. It is very important to consider the material facts of such representations or the consequences as a result of the act arising from the use or application of the products or goods in connection with what is prescribed in the advertisement.
In connection with this, it is proper to cite Section 169.1 of the Intellectual Property Code of the Philippines which states that,
Section 169. False Designations of Origin; False Description or Representation. – 169.1. Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which:
(a) Is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person; or
(b) In commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable to a civil action for damages and injunction provided in Sections 156 and 157 of this Act by any person who believes that he or she is or is likely to be damaged by such act. (emphasis applied)
Ambush marketing involves an act where it encourages the public to rely on false misrepresentations in the sense that, there are mislead to believe that the certain product has something to do and that its activities are connected to the public event. It deceives the public on its actual commercial activities, characteristics and qualities, issuing false publicity on what the product actually represents or supports.
To sum up my point, the act will only be considered as a violation of our laws if it has the intention of deceiving and causing confusion to the public. Since there is no specific law that was passed to address specific situations or prohibiting certain acts like the act of a spectator wearing the trademark of a specific brand, which is not an official sponsor of an event. For this example, if it can be proven that wearing such has the intention of pushing the public that such trademark is associated to the event, then the person may be held liable.
I absolutely agree that people are vested with the right to freedom of expression. However, there is always a limit to every right. To uphold every right even if it prejudices other persons would result to chaos and confusion, and would be contradictory to the purpose of the law which is to confer justice. Moreover, these laws came from the people themselves as they have enacted these laws through representatives in the government. If in case these laws would be deemed unfair, unjust and not suitable to our public morals and policy, then the people has the right to oppose it and assert to struck it down. In the first place, these laws are made to provide order in the society and for the benefit of its constituents. To cut it short, we have the power to check if such laws are prejudicial to the public at large. However, as long as these laws stand valid, it is our responsibility to abide by these laws, otherwise, there is no need for such.
Republic Act No. 386. Civil Code of the Philippines
Republic Act No. 8293. Intellectual Property Code of the Philippines
Republic Act No. 7349, Consumer Act of the Philippines
Ferrer, Jefferson Wilfredo. A Threat To Goals and Glory: Ambush Marketing in the Philippines. May 22, 2012. Retrieved last August 29, 2013 from http://www.iplaw.ph/ip-views/A-Threat-to-Goals-and-Glory-Ambush-Marketing-in-the-Philippines.html
Rico V. Domingo, Philippines: Special Topic for Discussion, Anti-Counterfeiting Committee 55th Asian Patent Attorney’s Association (APAA) Council Meeting Singapore, available at http://www.apaaonline.org/pdf/APAA_55th_council_meeting/anticounterfeitingcommittee/
Spoor and Fisher. May 10, 2010. Point: Ambush Marketing. Retrieved last August 30, 2013. http://www.spoor.com/home/25/files/Newsletter/ambush_marketing.pdf