Ambush Marketing clinches Gold in Olympics

The first ancient Olympics began in 776 BC when Koroibos, a cook from Elis, won the 600-foot footrace known as the Stadion. The race started in the 776 BC marked the dawn of one of the most enduring modern sporting events of the world. Today, the Olympic games feature over 200 national teams and approximately 11,000 athletes, competing for honor and glory in the biggest sports extravaganza spread over a fortnight. Whilst the Olympic Games, symbolized by the motto "Citius, Altius, Fortius - Communiter" (Faster, Higher, Stronger – Together), continue to celebrate the athletic prowess of athletes across the globe and capture global attention every four years it also attracts the less savory aspect of marketing known as ambush marketing.

The term ambush marketing was first coined by Jerry Welsh and broadly refers to the situation in which a company or product seeks to ride on the publicity value of the major event without having contributed to the financing of the event through sponsorship. For example, Reebok was the official sponsor for the 1996 Summer Olympics in Atlanta, Nike, in order to promote its brand, provided sprinter Michael Johnson a pair of gold-colored lightweight racing spikes shoes worth $30,000. Michael Johnson wore the gold-colored shoes for the race and clinched a gold medal in the 400-meter dash. The golden shoes worn by Michael Johnson on the race were not only viewed by millions of viewers but was later slung around Johnson’s neck a few days later on the cover of Time making viewers completely forget about Reebok being the official sponsor.

Sponsors in sporting events like the Olympics invest heavily to have their brand officially and exclusively associated with the event. However, if a non-sponsor brand tries to hijack the market of the official sponsor and markets itself in a way that creates the impression of being connected with the event, it dilutes the exclusivity rights of the official sponsor. This marketing tactic not only affects brands but also confuses consumers by misleading them into associating their positive feelings about the event with the ambushing brand instead of the actual sponsor.

For example, Adidas bought the rights to be the “Official Sportswear Partner of the London 2012 Olympic Games as well as the rights to use phrases like “London Olympics” and “London 2012”, but Nike being a non-sponsor brand during the 2012 Olympics games tried to associate itself with the game by launching the ‘find your greatness’ advertising campaign, wherein every day, athletes could be seen playing, practicing and using Nike apparel and accessories in places named London, such as East London in South Africa, Little London in Jamaica etc. The campaign allowed Nike to associate itself with London without making any sponsorship infringements and also made 60 per cent of the public believe that Nike is the Official Sponsor for the 2012 Olympics.

The Right of Publicity also known as Personality Right is a right of an individual to control the use and commercialization of their identity which is their personage in the form of voice, signature, likeness, appearance, silhouette, feature, face, expression, mannerism, distinct character.  The Hon’ble Delhi High Court in the case of Titan Industries Ltd. v. Ramkumar Jewellers, was of the opinion that:

“Publicity right of a Celebrity is defined as a famous or a well-known person. A 'celebrity' is merely a person who 'many' people talk about or know about and then the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity but that the right to control when, where and how their identity is used should vest with the famous personality. The right to control commercial use of human identity is the right to publicity."

Manu Bhaker Case of Ambush Marketing

Manu Bhaker created history in the Paris Olympics 2024 by becoming the first Indian to win two bronze medals in women’s and mixed shooting in a single Olympic event. Soon after her remarkable performance, the athlete was lauded with congratulatory and appreciative messages from various brands across the globe. Many brands, while sending her congratulatory messages, used her image as well as the Paris Olympic Insignia, medals.

These posts have been taken down by the respective brands.

Reportedly, iOS Sports & Entertainment who manage Manu Bhaker have called out the brands by sending out legal notices for using her images without authorization and violating her personality rights.

During the Olympic Games, the two types of IP rights which are heavily protected are:

The use of marks in relation to the games themselves

The Olympic Properties such as the posters, pictograms, torch, mascots, marks and emblems are protected internationally by Intellectual Property (IP) rights, such as registered designs, copyright, trademarks and other rights protecting intangible assets linked to the Olympic Games.

In addition to IP protection granted to the several Olympic Properties, the Nairobi Treaty on the Protection of the Olympic Symbol was adopted in 1981 obliges each state that has ratified it to refuse or invalidate the registration of a mark and to prohibit the use for commercial purposes of any sign consisting of or containing the Olympic symbol, except with the IOC’s authorization.

However, Official Partners have exclusive reproduction and marketing rights to the Olympic properties for commercial and promotional purposes. This is fundamental to the generation of revenue for the planning and organization of the Olympic Games and to safeguarding the goodwill of the Olympic Movement.

Examples of Olympic Properties are as under:

The use of Athlete’s personality attributes

The document on Key Principles of Rule 40 for Athletes at the Olympic Games Paris 2024, sets out principles for athletes and organizations using athletes in their advertising, and sports federations and agents who are involved in advising athletes in relation to their advertising activities enabling both athletes and their sponsors to continue to run well-planned campaigns that do not seek to take undue advantage of the Olympic Games themselves.

Key Principle 1 and 2 deals with Advertising by Olympic Athletes by Official Olympic Partners and Non-Olympic Partners.

Principle 1 states that the official Olympic partners are permitted to use Participant image for advertising provided the following conditions are satisfied:

a) Take necessary consent from the Athletes

b) The terms of the relevant Olympic Partner's contract with the International Olympic Committee (IOC), the Paris 2024 OCOG or the NOC (as applicable),

c) Respect the supplementary guidelines for Olympic Partners, which will be issued by the IOC and a National Olympic Committee (NOC) prior to the selection of the Participant by their NOC.

Principle 2 states that Non-Olympic Partners are permitted to use Participant Images for Advertising during the Games Period provided the following conditions are satisfied:  

a) Necessary consents from the Participants featured,

b) Respect the policies of the IOC, and the relevant National Olympic Committee (NOC) in respect of activities incompatible with the values of the Olympic Movement or the relevant NOC.

c) Advertisement does not use any Olympic Properties.

Rule 40

To protect the exclusive rights of the official Olympic sponsor’s exclusivity and preventing an athlete’s image from being associated with the Games, bye-law 3 to Rule 40 of the Olympic Charter states: 

“... except as permitted by the IOC Executive Board, no competitor, coach, trainer or official who participates in the Olympic Games may allow his person, name, picture or sports performances to be used for advertising purposes during the Olympic Games."

If you are a Non-Olympic Sponsor, you are permitted to use an athlete’s image if the specified conditions are met.

The Paris 2024 Rule 40 handbook states that campaigns must:

• Not make any connection to the Olympic Games, other than featuring athletes as Olympic athletes.

• Be regularly in market for at least 90 days before the Games period (April 18, 2024).

• Be run consistently and not escalated during the Games period.

• Be generic in nature and as constituted by the relevant NOC; Non-Olympic Partners/ Brands are required to notify the relevant IOC or NOC of the targeted country of their generic advertising plans by June 18, 2024

Congratulatory Advertisements by Non-Sponsors

Key Principle 4 deals with Congratulatory Advertisement.

According to the principle congratulatory advertising means both:

a) Supporting messages encouraging, sympathizing or supporting an athlete or a national Olympic team in connection with their participation at Paris 2024.

b) Congratulatory messages praising the athlete or a national Olympic team for their achievement at Paris 2024.

c) Congratulatory advertising may be undertaken:

• By Olympic Partners at any time, including during the Games Period;

• By Non-Olympic Partners before and after the Games Period, but without using any Olympic Properties.

Pursuant to the growing issue of unauthorized use of Athletes pictures for brand promotion, the Advertising Standards Council of India (ASCI) had released Code of Self- Regulation of Advertising Content in India. In order to ensure the truthfulness and honesty of representations and claims made by advertisements and to safeguard against misleading advertisements, sub clause 1.3 of Chapter 1 states that advertisements must be truthful and shall not, without permission from the person, firm or institution under reference, contain any reference to such person, firm or institution which confers an unjustified advantage on the product advertised or tends to bring the person, firm or institution into ridicule or disrepute. If and when required to do so by ASCI, the advertiser and the advertising agency shall produce explicit permission from the person, firm or institution to which reference is made in the advertisement.

As the Olympics come to a close, the issue of ambush marketing is already making headlines. The recent case of Manu Bhaker serves as a classic example of as to how piggybacking on someone else's hard work and personal attributes can lead to legal complications.

While congratulatory posts are not prohibited, Non-Sponsor brands must be mindful of certain considerations to avoid legal issues:

1. Make sure that posts highlight achievements and serve as motivation without directly promoting products.

2. Do not use brands logos in the congratulatory post and provide a disclaimer which clarifies that the said post is a congratulatory post and has no association with the athlete or the sporting event.

3. Rather than congratulating one athlete, brands can try and congratulate every winning athlete.

4. Commission doodle or caricatures of athletes to celebrate their achievements. This approach avoids using actual photos and provides a unique and personalized way to honor their success.

About the authors: Vikrant Rana is the Managing Partner of S.S. Rana & Co. Swayamsiddha Das is an Associate at the Firm.