36 Women in Orange and the 2010 FIFA World Cup

Author: Alan Wetterhahn

Many heads turned when 36 Dutch women dressed in orange miniskirts entered Johannesburg’s Soccer City stadium for the 2010 FIFA World Cup match between the Netherlands and Denmark. When authorities decided that the 36 orange women were guilty of “ambush marketing” and ejected them from the stadium, there was widespread condemnation of FIFA’s overzealous actions. FIFA have since decided against pressing charges.

Why all the fuss? What exactly is ambush marketing?

Ambush marketing (often called “parasite marketing”) is an attempt by a brand that is not associated with an event to commercially piggy-back on the goodwill, reputation and hype surrounding an event without paying for the right to do so. Official sponsors, partners and broadcasters will have paid for such rights, and in many cases, will have paid hundreds of millions of dollars for the privilege. FIFA will have obligations in contracts it has entered into with those organisations to stamp out any unauthorised association and they argue that if sponsors, partners and broadcasters are not protected, they will not come back to sponsor the event the next time it comes around.

In the past, event organisers needed to rely on trademark or copyright legislation to foil ambush marketers. This was inevitably unsuccessful because shrewd ambush marketers did not use the event marks. They did nonetheless suggest or imply that they, or their products or services, were associated with the event in question. Specific anti-ambush legislation has therefore in recent years become part and parcel of any bid to host a high profile world sports event.

The London 2012 Olympic and Paralympic Games certainly qualifies as such an event and it is no surprise therefore that the London Olympic Games and Paralympic Games Act 2006 contains various provisions designed to prohibit ambush marketing.

The 2006 Act, along with the Olympic Symbol etc. (Protection) Act 1995, protects various Olympic marks and, importantly, creates a right, known as the London Olympics Association Right. This right confers exclusivity in relation to the use of any representation which would suggest to the public that there is an association between the London Olympics and any goods or services or a person who provides those goods or services. As expected, an “association” is very widely defined.

In practical terms, what does this mean?

Unless you are an official sponsor, partner or broadcaster you may not use any of the London 2012 marks (these include the various London 2012 logos and the Team GB Olympic and Paralympic logos). Certain restricted words (set out below) and the London 2012 marks can only be used by non-sponsors when publishing or broadcasting a report or information relating to the Olympics.

The 2006 Act sets out certain words which a court may take into account when determining whether or not an association with London 2012 has been created. If an “unauthorised” advertisement uses any two expressions from List A or one expression from List A and one expression from List B are used, it is likely to fall foul of the law.

Offenders could face a fine of up to £20,000. The London 2012 Organising Committee has reportedly already been sending out cease and desist letters in an attempt to protect its rights.

Alan Wetterhahn, Associate, Fladgate LLP (awetterhahn@fladgate.com)

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