VILA Attorneys at Law
AMBUSH MARKETING IN SPORTS AND INTELLECTUAL PROPERTY
Sep/27/2024

AMBUSH MARKETING IN SPORTS AND INTELLECTUAL PROPERTY

Ambush Marketing, or Marketing by Ambush, is a practice that seeks to associate a brand with an event or sponsorship without being an official sponsor, which may entail legal and ethical risks if not handled properly.

There are various types of ambush marketing, namely:
Direct Ambush Marketing: This involves the intentional use of symbols and brands related to a major event to create the false impression that a company is the official sponsor. It can also include advertising incentives that mimic legitimate sponsors without using protected trademarks.
Indirect Ambush Marketing: This consists of tailoring the message to the event without directly infringing on the rights of the organizers or sponsors, using the event as a pretext for marketing purposes. It is further divided into indirect ambush by association and intrusion.

There are international provisions that, while not directly regulating ambush marketing, address behaviors that could be assimilated to this practice. Firstly, the Paris Convention protects the use of official signs from being registered as trademarks and addresses behaviors classified as unfair competition. Additionally, the Nairobi Treaty and the Olympic Charter provide protection for Olympic symbols. Furthermore, various guidelines and instruments from international sports organizations and others establish the protection of the distinctive signs corresponding to them.


Although there is no specific international regulation on the matter, several countries have implemented national legislation aimed at combating ambush marketing in sporting events. Notable examples include the London Olympic and Paralympic Games Act of 2006, the South Africa Consumer Protection Act Amendment of 2010, and the 2014 FIFA World Cup General Law.
In Mexican law, although ambush marketing is not explicitly regulated, there are provisions in different laws that indirectly address it. The Federal Copyright Law and the Federal Law for the Protection of Industrial Property prohibit the registration of distinctive signs or works that reproduce the emblems of international organizations and provide protection against unfair competition. Similarly, the Federal Consumer Protection Law includes provisions related to misleading advertising, establishing possible sanctions for those who engage in this practice.


It is also worth highlighting that ambush marketing may involve the potential liability of athletes who may contribute to or participate in such conduct by having individual sponsorships that conflict with the event's sponsorship agreements.
Finally, it is important to emphasize that, while ambush marketing has legal and ethical implications, not all actions fall within this practice. It is essential to also respect the freedom of expression of merchants and encourage creativity in advertising campaigns, as long as the rights of third parties are not infringed.

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