Thecase for legislation must be made on rational economic grounds in the publicinterest and in the specific Indian context. The case for legislation seems astrong one, especially from the perspective that the Indian sports ecosystemneeds a catalyst that large-format events can provide.InIndia, brands often take the route of trademark infringement because that isthe easiest and fastest way to get an injunction to stop the other brand fromambushing. The other option is filing a case under the MRTP (Monopolies andRestrictive Trade Practices) Act.
Inall cases, the Courts go into the intention of the party and the message thatthe ad or marketing campaign conveys to the general public, and what the publicmight perceive from the advertisement or activity, which is the result ofmarketing. More importantly, the Court will look at whether there isdisparaging of the competitor brand and if they have used the competitortrademark in any manner.ConclusionAdvertisingwhich some official sponsors might classify as ambush marketing was notprevented in cases such as Sydney Olympics 2000, FIFA World Cups etc, as wehave already seen.
For the unofficial sponsors, this advertising was simplysmart marketing. The question to be posed is, could and should legislationaimed at maximizing the revenue for Games organizers by seeking to protectofficial sponsors limit the legitimate marketing activities of non-sponsors? Manyof the activities previously labelled ambush marketing, competitive advertisingduring and around sponsored events for example, are now seen as legitimateactivities1. Thecreative use of ambush marketing tactics will probably always be a source ofirritation to event owners and their official sponsors, but the event ownershave accepted that the level of brand competition that exists in other media isalso likely to occur in sponsorship and associated activities. The law as itnow stands seems unable to accommodate the concerns of official corporatesponsors. There is no limit to human ingenuity.
As such, ambush marketing atthe margins will arguably always occur2. Sports has undoubtedly become a transpiring international culture, and major events like theOlympics and the World Cup is where the marketers can grab the opportunity to communicate with the world internationally. This then serves as a global communication medium of commerce with the competency of supplying a carrier to companies and firms to acquire viable competitive advantageIfone overall conclusion is to be drawn from the experience of the Sydney 2000Act, it is that the reality of ambush marketing is such that laws alone maywell prove inadequate for responding to ingenious marketing strategies. The organizersof events of this magnitude must develop an overall strategy which includesboth legal and practical (non-legal) initiatives for dealing with the issue ofambush marketing. Any marketing strategy that still manages to ambush the eventmust be held to be legal, no matter what the questions regarding the ethicsbehind it is. The customary statutory measures must be enacted to take downdirect ambush marketing strategies that latch on to the intellectual propertyof the event.
Along with that, there must better decisions on the part of theevent organizers while distributing the broadcasting rights as well as toensure the advertisement spaces in and around the event locations. All of thisstill may not be sufficient to bring down a huge corporation such as Nike downto its knees, but it might still help prevent the small scale ambush marketing.1 Meenaghan T (1996).
Ambushmarketing – A threat to corporate sponsorship. Sloan Management Review, 38,103-113.2 Curthoys J & Kendall C(2001). Ambush marketing and the Sydney 2000 Games (Indicia and Images)Protection Act: A retrospective. Murdoch University Electronic Journal Of Law,8(2), http://www.
murdoch.edu.au/elaw/issues/v8n2/kendall82.html. Accessed 06August, 2003.
