Can a Brand Ambush March Madness - Ad Age Mini Law Lesson

Mini Law Lesson: Can a Brand “Ambush” March Madness

Brian Heidelberger Winston & Strawn

bheidelb@winston.com

IMPORTANT DISCLAIMER

• This is not legal advice.• I am not your attorney.

What is Ambush Marketing?

“Trading off of the good will of an event without being an

official sponsor.”

What is the Law?

• misuse of a symbol or device; • which is likely to confuse consumers

as to the plaintiff’s sponsorship or approval of the product in commerce.

So What Can a Brand Do?

Tactics: Avoid Use of Trademark

Risks?

• Avoiding use of trademarks doesn’t mean that you are clear

• Final Four® and “March Madness®• “Media/news entities do not need written

consent to use NCAA marks/logos for editorial content in coverage of NCAA events.”

• NCAA Policy prohibits use of “display of any commercial identification within an NCAA championship bracket”

Tactics: Give Away Tickets

• “Win Tickets in the Coors Light Tourney Time Sweepstakes”

– 2001 Coors Promotion

Risks?

• Back of tickets have a license which states, in effect, “may not be given away for promotional purposes”

• Just b/c you can buy ‘em doesn’t mean you can give ‘em away in promotion

• NCAA policy rejects use of tickets w/out permission.

Tactics: Giveaways to Attendees

Risks?

• Football World Cup, Dutch brewer, Bavaria, gave away garish orange lederhosen displaying its name to hundreds of Dutch supporters attending the match against the Ivory Coast.

• Budweiser was the official beer. • Stewards at the match ordered the fans to

remove the garments before letting them in.

Tactic: Use Disclaimer

“This Ad Is Only Sponsored by Us and No Third Party”

Risks?

• Disclaimers are not always accepted by a court as effective

• Disclaimer likely won’t fix an ad which is confusing on its face

• Disclaimer is only as good as the clarity of the ad and the disclaimer’s prominence.

Tactics: Sponsor Athlete

Risks

• May be prohibited/restricted by sanctioning body

• Olympic Rule 40 –Athletes are not allowed to appear in

non-Olympic sponsored ads before and during the Olympics–Could cause athlete to be stripped of

his/her medal, sanctioned or fined.

More Videos?

Search Adage.com; or Go to youtube.com/BrianHeidelberger

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