[1] Geoffrey Brewer, "Be Like Nike", (1993) Sales and Marketing Management 67 at 70, quoted in Denise Doust, "The Ethics of Ambush Marketing" in The Cyber-Journal of Sport Marketing http://www.cjsm.com/Vol1/doust.html
[2] The IOC's figures for 1997-2000 show that income came from the following sources: broadcast rights fees 51.2%, local sponsorship 17.5%, TOP/international sponsors 16.1%, ticketing 12.6%. licensing 1.7%, other 0.9%. As noted in Time, September 24, 2000.
[3] Anon, "Going for Gold", Media and Marketing Europe, June 1996. Brad Henning, Marketing Director for Visa agrees, pointing out that, "our research shows that consumers who are aware that we sponsor them feel good about the company and are more likely to use the card. The payback for Visa is going global. Only the Olympics allow us to do this in one event." Quoted in, Anon, "Going for Gold", Media and Marketing Europe, June 1996.
[4] Time, September 25, 2000.
[5] Rochelle Burbury, "Payback Time for Sponsors", The Australian Financial Review, September 15, 2000 at 54.
[6] Ibid
[7] See Michael Payne, "Ambush Marketing: The Undeserved Advantage", (1998) 15(4) Psychology and Marketing 323 at 327. See also, Sue Landau, "Budweiser Seeks Curbs on Ambush Marketing", Reuters New Service, July 15, 1998.
[8] A point brought to our attention by the referee for this paper. We acknowledge and thank this person for their extremely useful and informative comments on an earlier draft of this paper. Many of their comments have been incorporated into this paper.
[9] Steve McKelvey, "Sans Legal Restraint, No Stopping Brash, Creative Ambush Marketers", in Brandweek, April 18, 1994 at 20.
[10] Senate Legal and Constitutional References Committee, Cashing in on the Sydney Olympics: Protecting the Sydney Olympics from Ambush Marketing (Canberra: Commonwealth of Australia, 1995).
[11] Hereinafter, the Sydney 2000 Act. See Graeme Orr, "Marketing Games: The Regulation of Olympic Indicia and Images in Australia", [1997] 9 European Intellectual Property Review 504. See also Patrick Deane, "Exploitation of Olympic Symbols" [1995] 3 European Intellectual Property Review 161
[12] In analysing ambush marketing it is important to note that the term "ambush marketing" is inherently pejorative. It could just as easily have been called "association marketing". This paper will not address the ethics or propriety of ambush marketing. This issue has been effectively dealt with and debated elsewhere. See, generally, Paul O'Sullivan and Patrick Murphy, "Ambush Marketing: The Ethical Issues", (1998) Psychology and Marketing 349; Tony Meenaghan, "Ambush Marketing: Corporate Strategy and Consumer Reaction", (1998) 15 Psychology and Marketing 305; Denise Doust, "The Ethics of Ambush Marketing", The Cyber-Journal of Sport Marketing (http://www.cjsm.com/Vol1/doust.html); Stephen McDaniel and Lance Kinney, "The Implications of Recency and Gender Effects in Consumer Response to Ambush Marketing", (1998) 15(4) Psychology and Marketing 385.
[13] Frank Zimbo, "Ambush Marketing", (1996) 12(6) Australian New Zealand Trade Practices Law Bulletin 93
[14] Payne, supra. note 6 at 326.
[15] Examples of this type of infringement are numerous. A recent US example is found in the case of Host Communications v Kellogg (1994), unreported, United States District Court of Kentucky, No. 94-26, per Wilhoit, J. See also MasterCard International Inc v Sprint Communications Co. (1994) 30 USPQ 2d WL (US Dist.), as discussed in Anthony Verrelli, "Survey of Recent Developments in Sport" (1994) 4 Seton Hall J Sports L 726.
[16] Stephen Townley, Dan Harrington and Nicholas Couchman, "The Legal and Practical Prevention of Ambush Marketing in Sport", (1998) 15(4) Psychology and Marketing 333 at 335. Townley et al note (at 336) that "the 'ambusher' who employs the tactics set out under this heading is likely to be a more sophisticated and commercially wily animal", with typical examples of these activities including: unauthorised or unofficial merchandise; unauthorised or unofficial publications; unauthorised sales promotion activity; unauthorised broadcasts, virtual advertising, Web sites, live screenings, films, video, photography, telephone commentary, information lines, pager services; unofficial corporate sponsorship.
[17] See, for example, the National Hockey League et al v Pepsi Cola Ltd case discussed below.
[18] For example, both Qantas and Adidas, both non-sponsors, purchased television advertisements which were shown during the coverage of the Sydney 2000 Olympic Games.
[19] In June 2000, for example, Adidas launched a 12 part Olympics documentary series on the Ten Network which featured 10 Adidas sponsored athletes.
[20] Tony Meenaghan, "Ambush Marketing: Immoral or Imaginative Practice?" (1994) 34 (5) Journal of Advertising Research 77 at 81. See also Tony Meenaghan, "Ambush Marketing: A Threat to Corporate Sponsorship?" (1996) 38(1) Sloan Management Review 103. An excellent overview of Meenaghan's work is found in Doust, supra. note 11.
[21] Anon, "American Express Replies to Criticism" New York Times, January 27, 1992 at B8.
[22] For other examples, see Alexander Garrett, "Stick 'Em Up - And Outwit the Sponsor" The Observer, July 27, 1996 at 16; Andrew Steele, "Non-Sponsors Muscle in on Olympic Action", Reuters News Service, July 11, 1996; Jane Von Bergen, "Campbell Soup Uses Skating Stars, But It's Not Olympic Sponsor", The Philadelphia Inquirer, February 17, 1998 at 16; James Cox, "Wendy's Unofficial Ads Irk Organisers", USA Today, July 11, 1994 at 1B; Alan Bayless, "Ambush Marketing Is Becoming Popular Event at Olympic Game", Wall Street Journal, February 8, 1988 at 27; Helen Jones, "World Cup Sponsors Worry Over Advertising Ambush" Reuters News Service, April 15, 1998; Tim Reid and Richard Rivlin, "The Fields of Gold - The Biggest Game in Town", Sunday Telegraph, June 7 1998 at 24; Jason Nisse, "Sponsors Fall Victim to the ambushers", The Times, June 2, 1998 at 31; Tara Nealon, "Sponsorship: Stealing the Limelight", Marketing, August 15, 1996 at 33; Richard Cook, "Can Ambushing of Sponsored Events Be Stopped?", IAC Trade and Industry Database, April 18, 1997; Anon, "The Rings of Desire", Marketing Week, August 9, 1996 at 34; Patrick Barrett, "One in the Eye for Sponsors", Media Marketing, August 1, 1996 at 11; Russ Dewalt, "Miller Time At Underground Atlanta Takes Spotlight Away From Budweiser", The Atlanta Journal, June 12, 1996 at 10.
[23] Howard Schlossberg, "Marketing - The Holes in Exclusivity", Credit Card Management, May 31, 1997.
[24] Ibid
[25] Ibid
[26] Sue Landau, "Budweiser Seeks Curbs on World Cup Ambush Marketing" Reuters News Service, July 15, 1999. See also Denise Gellene, "Coke Sponsorship is no Longer the Real Thing", The Los Angeles Times, September 4, 1996 at 1 and Jeff Jensen, "Some Sponsors Pass in Game Adds", Advertising Age, January 23, 1996 at 3.
[27] Orr, supra note 10 at 505.
[28] Olympic Insignia Protection Act 1987 (Cth), section 5(1)(a).
[29] Ibid section 5(2)(a).
[30] Ibid section 5(2)(b).
[31] Ibid section 6.
[32] Ibid section 8.
[33] (1992) 92 DLR (4th) 349 (BC Sup Ct). For an excellent analysis of the cases and its possible implications in North America, see Robert Davis, "Ambushing the Olympic Games" (1996) Villanova Sports and Entertainment Law Forum 423. See also, Lori Bean, "Sports Sponsorship and the Lanham Act" (1995) 75 Boston University Law Review 1099.
[34] NHL v Pepsi at 353.
[35] Id
[36] Id
[37] Ibid at 352.
[38] Ibid at 354.
[39] Ibid at 355.
[40] Ibid at 356.
[41] Ibid at 356-357.
[42] Davis, supra. note 31.
[43] Ibid
[44] NHL v Pepsi at 359.
[45] Id
[46] [1972] 2 All ER 507 (HL).
[47] Specifically, the Court held that while "the Coke NHLS agreement obligates NHLS, so far as it is able, to protect the rights of Coke from ambush marketing, such an obligation cannot impose on a third party a duty to refrain from engaging in advertising its products in a manner which, although aggressive, is not, by the law of Canada, unlawful... It may be that, due to Coke's failure to secure the right to advertise its product during the television broadcasts of NHIC and the securing of such rights by the defendant, the commercial value to Coke of the right to describe its product as the 'official Soft Drink of the NHL' has less commercial value than would have been the case if Coke had also obtained the right to advertise on NHIC. But that cannot diminish the defendant's rights. " (Pepsi at 369).
[48] Ibid at 364.
[49] Davis, supra. note 31.
[50] (1989) 14 IPR 264 (Fed Ct - Gen Div).
[51] Ibid at 269.
[52] Id
[53] Ibid at 270.
[54] Ibid at 278.
[55] (1990) 18 IPR 185 (Fed CA) at 194.
[56] See also, Talmax Pty Ltd. And Another v Telstra Corporation Limited, (1996) 36 IPR 46 (Qld CA) and the Taco Bell case (1988) ATPR @40-303, in which it was held that "irrespective of whether conduct produces or is likely to produce confusion or misconception, it cannot, for the purposes of section 52, be categorised as misleading or deceptive unless it contains or conveys, in all the circumstances of the case, a misrepresentation.
[57] Senate Report, supra. note 9 at 1.
[58] See generally, McDonald's System of Australia Pty Ltd v McWilliams Wines Pty Ltd (no.2), (1980) 33 ALR 394; Weitman v Katies Ltd. and Ors, (1977) 29 FLR 336; 10th Cantanae Pty Ltd. v Shoshana Pty Ltd, (1988) 79 ALR 299; Pacific Dunlop Limited v Paul Hogan & Ors, (1989) ATPR @40-948; The Taco Bell Case, (1988) ATPR @40-303. Discussed in Senate Report, supra note 9 at pages 43-53.
[59] Senate Report, supra. note 9 at 52.
[60] Ibid recommendation 7 at 121.
[61] Ibid
[62] Ibid recommendation 2 at 118.
[63] As Deane points out, however, "it is interesting to note that the Bill singles out the use of the stand-alone references to the words "Olympic" and "Sydney 2000" when the Senate Committee report only proposed that those phrases be protected when used in conjunction with others." This is particularly surprising given that the rest of the Act tends to water down the report's recommendations, rather than use them as suggested or strengthen them. See Patrick Deane, "New Games Protection Bill to Prevent Ambush Marketing", (1996) 9(1) Australian Intellectual Property Law Bulletin 14.
[64] It is beyond the scope of this paper to examine the likely use and success of the Act's remedial powers. See, generally, however, Tom Altobelli, "Cashing in on the Sydney Olympics" (1997) Law Society Journal 44 and Deane, supra. note 61 at 15.
[65] (1996) 35 IPR 55 (High Court NZ).
[66] Ibid at 56.
[67] Ibid at 60.
[68] (1996) 36 IPR 621 (per Homann, Hearing Officer). Although Baxter is primarily a trade marks case, the court does make passing reference to the Sydney 2000 Act. The court's conclusions in this regard do not bode well for the future application of the Act as the decision relies heavily on past interpretation of Australian trade practices law - an interpretation which, as this paper has shown, does not deal well with ambush marketing techniques.
[69] Ibid at 632.
[70] Honey, supra. note 48 at 278-280.
[71] Owen Morgan, "An Olympic Ring-In, Ambush Marketing in NZ", (1997) 10(5) Australian Intellectual Property Law Bulletin 72 at 75.
[72] A point raised by the referee for this paper, to whom we are most grateful for her/his assistance and helpful comments.
[73] Rosemary Ryan, "Ansett Games Campaign Under the Starter's Gun", Daily Telegraph, November 12, 1997 at 51. See also, "Anon, "Non-Sponsors are benefiting From Games", Countdown 2000, September 1997
[74] Ibid
[75] Lehmann, "Olympic hijack" The Weekend Australian, September 4-5 1999 at 29-30.
[76] The advertisement, which covered one half of the back page of the Australian sports section, appeared at page 48 on August 6, 1997. The ads headline read, "A TRULY WORLD CLASS PERFORMANCE", under which appeared the following congratulatory message: "Qantas congratulates Cathy Freemen on winning the 400 m final at the World Athletic Championships. Qantas shares Cathy's lifelong commitment to sport and her passion to be the best."
[77] Jenny McAssey, "Pressure Mounts on Cathy for 2000", The Australian, August 6, 1997 at 48.
[78] Rochelle Burbury, "Ambush Tactics: It's a Jungle Out There", The Australian, July 24, 1997 at 31. Burbury has written extensively on ambush marketing strategies leading up to the Sydney Olympics. See, eg, Burbury, "Opportunity Knocks for Adventurous Sponsors" The Australian, October 28, 1998 at 36 and Burbury, "It's War Out There, So Ambush Tactics Are Legitimate", The Australian, October 16, 1997 at 30. For other specific examples of Pre-Olympic ambush marketing strategies, see Michael Evan, "Torch-Carrying Greek Galley Plan May be Sunk", Sydney Morning Herald, March 26, 1999 at 2; Anon, "Visa Olympics Deal Poses Problems", Cards International, December 18, 1998 at 9; Adam Turner, "NAB's Olympic Efforts Pay Off in Card Logo", Sydney Morning Herald, November 14, 1998 at 62 and Jeremy Flint, "NAB Card Takes on a Sporting Image", The Australian Financial Review, November 14, 1998 at 12. For examples of non-Olympic strategies, see Anon, "Tennis Placards Seized", The Daily Telegraph, January 23, 1999 at 147; Leithan Francis, "Mitsubishi Helpless Over Honda Ambush at MCG", Australasian Business Intelligence Ad News, October 9, 1998 at 6; Mark Duffield, "Football: AFL Sponsorship", The West Australian, October 7, 1998 at 18.
[79] Rochelle Burbury, "Ansett moves to thwart Qantas 'ambush'", The Australian Financial Review 5 September 2000 at 34.
[80] Lisa Allen, "SOCOG win against pirate Olympic caps", The Australian Financial Review, 27 July, 2000 at 5.
[81] Rochelle Burbury, "Ambush! All's fair in adland wars", The Australian Financial Review, 28 September 2000, at 34.
[82] Rochelle Burbury, "Payback time for sponsors", The Australian Financial Review 15 September 2000 at 54
[83] Again, this is a point brought to our attention by the referee to this paper. We acknowledge and thank her/him for his insights in this regard. See also Burbury, above, note 78.
[84] Rochelle Burbury, supra. note 77 at 34.
[85] See Townley et al, supra. note 15. See also Russell Falconer, "Ambush Marketing and How to Avoid It", (December 1996) Euro-money's Managing Intellectual Property 1; Shani and Sandler, "Ambush Marketing: Is Confusion to Blame for the Flickering of the Flame?", (1998) 15(4) Psychology and Marketing 367; Lionel Hogg, "Advising Sponsors of Sport", (1995) Queensland Law Society Journal 367.
[86] Jim Kirk, "Cities Buy Up Billboards, Stave Off Ad Ambush to Host Olympic Games", Chicago Tribune, October 27, 1997 at 2. See also, Peter V O'Brien, "Sit Back, Enjoy the Games and Ignore the Cash Registers Ringing", Australia/New Zealand National Business Review, July 19, 1996 at 13.
[87] Olympic Arrangements Act, sections 66 to 68.
[88] Ken Florin and David Carlin, "Ambush Marketing", Advertising Age, October 30, 1995 at 22. See also Jeff Jensen, "Ambush League: Olympic Sponsors See Potential Problems Inside Their Own League", Advertising Age, April 24, 1995 at 25; Leslie Bayer, "Ads Caution Olympic ambushers", Advertising Age, June 10, 1996 at 12E.
[89] See authors noted within, supra. notes 78-81.
[90] A point again raised by the referee for this paper and for which we are grateful.
[91] Ibid