Thursday July 2nd 2009, by Piers Strickland
Some things are plainly wrong, like trying to gouge the eyes out of your opponent. Other issues are much more of a grey area.
One contentious issue which is bound to receive a lot of coverage, particularly as the 2012 Olympics approach, is the issue of “ambush marketing”. This is the technique of trying to associate a brand with a large event (such as the Olympics or the British Lions Tour of South Africa).
An interesting recent complaint before the Advertising Standards Agency (ASA) was a complaint that the makers of London Pride beer (Fullers) had gone too far in suggesting a link with the English Rugby Team. On one of its adverts it had the slogan: “SUPPORT ENGLISH RUGBY” and made other references to rugby. The Rugby Football Union (RFU) objected to this advert on the basis that it implied that there was an official affiliation between the RFU and Fullers (when in fact the RFU had already signed up a competitor of Fullers to be their “official beer”).
In its decision the ASA did not uphold the RFU’s complaint on the following basis:
The ASA noted the specific features that official sponsors were likely to include in their advertising, such as the claims “official partner” or “official sponsor”, were not included in the ad. We considered that readers were unlikely to be misled into thinking that Fullers were an official sponsor or partner of the England rugby team. They would expect an advertiser to state if they were an official sponsor and the ad did not claim that Fullers were. We also considered that the text “SUPPORT ENGLISH RUGBY” was not misleading, because Fullers did support English rugby as a sport and had done for several years. We concluded that the ad was not misleading and did not take unfair advantage of the reputation of the England rugby team.
Perhaps the RFU would have had a better case if it had registered ENGLISH RUGBY as a trade mark, particularly in view of the recent case of L’Oréal v Bellure as commented on in an earlier post.
Having registered trade mark rights might give you extra legal ammunition when considering your options in terms of tackling ambush marketing. Conversely, when considering an ambush marketing campaign, an analysis of the trade mark portfolio of the potential opponent might help keep the campaign out of further legal hot water. After all, there are some nastier things than a complaint to the ASA…
