Is This The Most Brilliant World Cup Ambush Marketing Attempt Yet?
Posted: 6/23/2010 9:18:49 AM by
Jim Andrews | with 0 comments
With the eyes of the world focused on the competitive sponsorship activity surrounding the FIFA World Cup, I submit for consideration a press release we received from Berkeley, Calif.-based GU Energy Labs, the maker of GU sports energy gel.
GU was pleased to announce that the Brazilian national soccer team would be using its product during World Cup training and matches.
This was not a corporate sponsorship announcement, simply a notice that the team had purchased 200 boxes of the product for use. In fact, the release even stated: “Unlike partnerships with past and present sponsors like Kyocera and Volkswagen, the team’s use of GU product will not involve commercial considerations.”
This is a more than clever stroke on GU’s part, seemingly taking the restrictions placed on a vendor versus an official supplier/sponsor (no commercial considerations) and turning them around to make the case that the team’s use of the product is thus purely authentic. The company basically is saying: “While others may pay for a relationship with the team, the team pays us because it believes so much in our product.” To many people, that would be the definition of an “official” team product.
I find the question this raises from a legal and ambush marketing standpoint to be pretty fascinating: Was GU within its rights to issue a press release about the purchase or does its announcement infringe on the team’s rights to commercial use of its name? Put another way: Are there steps a property can take to restrict a vendor from announcing that the rightsholder has become a customer?
Whenever I have such questions, I turn to the world’s foremost legal expert on sponsorship, Mary Hutchings Reed, who is of counsel to the Chicago-based law firm Winston & Strawn and author of The IEG Legal Guide to Sponsorship.
Turns out, GU’s announcement does not violate any Team Brazil rights. Specifically, Mary says:
“It's basic trademark law that one is free to use another's trademark in a truthful manner, for the limited purpose of making a truth statement about that product or your own. You can, for instance, say you service Volkswagens, even if you aren't an "authorized" dealer. But you can't use their logo and you can't suggest an endorsement, sponsorship or affiliation if none exists.”
Mary further points out that while a company such as GU is within its rights to publicize and advertise the names of teams, companies, etc. who are customers, they need to be careful in their language. “Can you say, “here are the companies who trust us?” since you don’t know why they bought your product. You might not even know that they “use” your product; perhaps it is just back-up, so you’ll always have to pay close attention to the actual facts.”
As to whether properties can limit such disclosures by companies whose products they buy, Mary adds:
“If a team is buying direct from the manufacturer, then the team should be able to write a confidentiality clause or a PR clause that says the company won't disclose the purchase without the team's consent. (And, on the third side of this, if you are an official supplier or official sponsor, you ought to write a clause that says the team won't buy from competitors or other specified vendors, to forestall just this sort of thing.)
“But if a team buys from a third-party vendor, and it’s true that the team has bought a product, then the law in the U.S. does seem to allow some latitude for the use of the team's word trademark to truthfully advertise that. (Note, however, that the law does not grant the same latitude to a company when a celebrity buys or uses its product; the commercial use of a person's name/right of publicity almost always must be licensed, and almost any use by a commercial entity is a commercial use.)”
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