Kickboard advertising: a gentleman's offense for creatives or a criminal offense?

Ambush marketing Bakers and butchers will be selling football biscuits and grilling European Championship sausages at Euro 08. There are many unpleasant synonyms for the term ambush marketing: free rider, parasite or parasite advertising, ambush marketing. Officially, it means the misleading of consumers through the unauthorized association of a product or service with an advertising event in order to profit from it without making a contribution of one's own. This is naturally a thorn in the side of event organizers, who pay dearly for sponsorship contracts. Because for them, without sponsors, there are no events. But what are the limits of sponsorship protection? Does it make sense to suppress ambush marketing at all costs? Shouldn't the entire economy, which plays a decisive role in financing such events, be able to benefit from it? The 2006 World Cup in Germany showed this: The bigger the event, the more money can be made. The logical consequence of this was that everyone wanted a slice of the cake, with or without the organizer's permission. The official sponsors reacted sensitively to the countless encroachments on their advertising territories, and the world football association Fifa was forced to rigorously enforce brand protection. This earned the world football association a bad reputation. Alexander Koch from Fifa's Marketing & TV division said at the Sport Forum Switzerland last November: "We are accused of being an eight-armed octopus that wants to take over the (advertising) world with the help of an army of lawyers."
The European Football Association (Uefa) wanted to solve these problems in the run-up to Euro 08 and called on the Federal Council to amend the Unfair Competition Act (UCA). Anyone who "refers to third parties, their goods, works or services in a parasitic manner without sufficient reason and thereby exploits their reputation" should now act unfairly. However, the new article was only supported by organizers of major events, sports associations and six cantons. The other cantons were against it, as were business associations and consumer organizations.
In November, the Federal Council decided against amending the law. The main argument was that events such as Euro 08 should be open to everyone and should bring economic incentives and growth to the whole country. In addition, the wording was also criticized, as "goods, works and services" include not only major events, but also services and products of all kinds and from every provider, i.e. "every product on the market". However, the Federal Council agreed to monitor ambush activities at Euro 08 and to incorporate the findings into a federal strategy for major sporting events.
Uefa has taken note of the decision. In any case, it retains the rights to the protected trademarks and logos, such as EM 2008 or Euro 2008, and can regulate advertising within the stadiums and in their immediate vicinity (so-called "banned areas") itself and reserve these rights for its sponsors. Event organizers can also continue to take action against unlawful and misleading advertising, but they must refrain from taking legal preventive measures for the time being.
 

 
 
Interview with lawyer Matthias Ebneter The specialist in advertising and communications law, on ambush marketing and sponsor protection.
WW: Although there is no doubt that sponsors of major events need to be protected, the proposal to revise the UCA was rejected. Did Uefa want too much? Matthias Ebneter: The UCA contains a general clause stating that any deceptive or otherwise unfair behavior or business conduct that influences the relationship between competitors or between suppliers and customers is unfair (Art. 2 UCA). Ambush marketing, which is unfair in this sense, was already prohibited. However, in view of Euro 2008, Uefa wanted to introduce a special offense against ambush marketing into the UCA, which was rejected by the majority of those consulted for economic and legal policy reasons or was deemed unnecessary and disproportionate. The fact that the bill was introduced hastily and unilaterally in the interests of Uefa probably also played a role in this.
In addition to competition law, however, there are other ways of protecting sponsors, in particular through trademark protection, protective measures in contracts with media partners and event venues and corresponding controls.
WW: FIFA's rigorous sponsorship protection measures at the World Cup 06 in Germany were met with incomprehension by the public. Is Uefa now facing the same trouble?Matthias Ebneter: Anyone who engages in legally questionable or inadmissible advertising or sells unlicensed items or items that are not permitted at the venue must expect to be prosecuted by Uefa. However, Uefa's sanctions often also affect bystanders, namely football fans, who make such a major event possible in the first place. At the 2006 World Cup, for example, the fact that spectators were denied entry to the stadium because they were carrying promotional items from direct competitors of the official sponsors was met with incomprehension.at first glance, such sponsor protection measures may seem excessive. However, when you consider the enormous sums paid by the official sponsors, you understand that Uefa takes sponsor protection relatively seriously. It remains to be seen whether Uefa can gain the public's understanding in connection with sponsor protection measures at Euro 2008 and, above all, avoid upsetting football fans.
WW: How should small companies and stores that want to sell their products in connection with Euro 08 proceed in order not to make themselves liable to prosecution? Small companies and stores should above all be wary of using Uefa's registered trademarks in connection with Euro 2008 without a license to market their own products. This includes in particular all logos and word marks (Euro 2008, Uefa EM 2008 etc.). It is questionable whether all registered trademarks are actually eligible for protection. In terms of competition law, it must be ensured that advertising does not contain any incorrect information, does not create a false impression (e.g. suggesting non-existent relationships between companies and Uefa) and does not mislead consumers. However, allusions to Euro 2008 and football in general in particular are generally permissible (e.g. football-themed events, Euro 2008 discount campaigns, the launch of special products in connection with Euro 2008, etc.).
If personalities are to be included in the advertising, for example with photos, testimonials or advertising appearances, their consent must always be obtained. As strict controls by Uefa at the official venues (stadiums, fan miles, public viewings, etc.) are to be expected, giveaways from direct competitors of official sponsors are unlikely to stand much of a chance and may cause more trouble than good.
For projects (advertising measures, events, product launches, etc.) with major financial risks, it is advisable to contact an expert lawyer at an early stage and have the project legally examined.
WW: Ambush marketing is one man's joy and another man's sorrow. But in the end, which outweighs the other, the damage or the gain?
Matthias Ebneter: Ambush marketing leads to damage when the scope of what is legally permissible is clearly exceeded and a competitor's water is cut off or consumers are deceived. However, if ambush marketing is legally permissible, the associated competition must be accepted and is even desirable. Ultimately, Uefa can also benefit if as many people as possible make Euro 2008 and football a topic of discussion and thus promote public interest in the event. Original, creative advertising within a legal framework is an enrichment for Euro 2008, the advertising industry, the competition and the general public.
Maila Bermejo