Defending IPL From Ambush Marketing Strategies

25th July, 2023 - 9:25 am Categories: Intellectual Property Trademark 0 Comments

Introduction

Sports play a massive role in everyone’s lives as a source of entertainment and unparalleled passion, contributing to 5% GDP of world’s economy^[1]. Sports industry is one of the biggest industries across globe now owing to people’s increasing interest in the same. One such example is the popular Indian Premier League of cricket in India. It’s not an unknown fact that IPL is a great boost to the commercial powerhouse that attracts various investors and sponsors. The IPL’s growth and economic viability, like any commercial project have resulted in a greater focus on safeguarding intellectual property (IP) rights. IPL is not just restricted to production and manufacturing of sports related items, but is also a platform for originality, conceptualisation and creativity. IPL is a prime example of how IP rights are essential for preserving a sporting event’s commercial area  while fostering innovation and creativity.

Ipl As A Brand

For the IPL 2023, the Board of Control of Cricket in India (BCCI) published certain guidelines^[2] to protect IPL as a brand and provided safeguards on commercial and non-commercial use of proprietary names, proprietary marks and audio-visual representation of matches. The branding of IPL was done with a view to reward participation of sponsors, merchandisers and investors and to mitigate activities that damage these stakeholders’ exclusive rights. The IPL IPR is protected by the means of Trademark, Design as well as Copyright act along with protection against signal theft and terms and conditions under which IPL match tickets can be sold on the basis of which people are allowed to enter the stadium. Without IPL license, it is illegal to (i) use the IPL Names and IPL Marks in a way that could mislead the public about a commercial relationship with the IPL, or (ii) duplicate or distribute goods protected under IPL IPR in the course of business^[3]. It is strictly prohibited to use IPL names and marks without license in a way of promotion or advertisement goods, business or any service. Falsely representing or implying any affiliation, endorsement, sponsorship, or other similar relationship with the IPL through the use of IPL IPR is also prohibited^[4].

[Image Sources : Shutterstock]

Meaning Of Ambush Marketing

Effective marketing includes a strategy that makes the consumers remember the message content as well as helps them attribute the message content to its intended source. The most effective times for the transmission of this communication are during sporting events. As a result, businesses buy the right to advertise their goods inside and outside of event venues to strengthen their brand reputation. Due to competitors’ purposeful attempts to overshadow reputable sponsors, consumers are more likely to be confused about official sponsorship, known as ambush marketing which is the practise of confusing consumers about the real sponsors of sports events. There are several reasons why ambush marketing is so prevalent in sporting events. It not only provides great marketing opportunities to the brands and the sporting event, but also, due to lack of any proper legalisation or judicial pronouncements on the same, it is easier for brands to take advantage of the same. Including a disclaimer in commercials is a common practise that serves as a cover for brands that practice parasitic marketing. For instance, Pepsi Cola applied a disclaimer in the National Hockey League that read, “We are not an official sponsor and have not paid for the affiliation with the event.”^[5] These disclaimers turn out to be a loophole, allowing the non-sponsoring brands to get away with using such tactics. Additionally, because the product being sold is different from that of the sponsoring brand, such brands easily avoid claims of passing off, causing the latter to suffer significant losses. Ambush marketing can be further categorised into two types:

• Direct ambushing: In direct ambushing, the brands intentionally use the name, title or logos of popular sporting events so as to show some sort of direct association with the event, despite not owning any sort of licensing or merchandising rights. This creates an opportunity for them to leverage on the event’s popularity.
• Indirect ambushing: Indirect ambushing is further divided into two types:
• Associative ambushing is the practise of non-sponsoring brands creating an impression in the public’s mind that they are somehow connected to the sport or the event, without actually mentioning the event.
• The practise of incidental ambushing involves non-sponsoring companies flooding an event with so many of their own advertisements and promotional campaigns that they can easily lead consumers to believe they are the event’s sponsors.

Instances Of Ambush Marketing In Indian Sporting Events

Recently, during IPL 2023, some fans were allegedly prohibited from entering the Eden Gardens stadium as they were wearing the Mohun Bagan jersey^[6]. When question, the team of Kolkata Knight Riders denied any claim saying that their only intent was to prevent ambush marketing and from consumers to see Mohun Bagan as an affiliate to IPL. This recent incident shows the prevelance of ambush marketing in IPL. However, not just IPL, but also big cricket events like Cricket World Cup are infected by ambush marketing as seen in an early instance of  Coca Cola v Pepsi in 1996^[7] which is still continuing.

Coca-Cola was the Cricket World Cup’s official sponsor back then. Coca-Cola made a large financial investment to secure its formal sponsorship. Only to have Pepsi’s inventive marketing strategy give it a run for its money. Pepsi boldly developed a campaign with “nothing official about it” that captured consumers’ attention. Sachin Tendulkar and Courtney Walsh, among others, were recruited by Pepsi to take part in the campaign^[8]. This was a direct ambush on Coca-Cola’s marketing strategies. In 2017, Jio telecommunications ambushed the match between Mumbai Indians and Sunrisers Hyderabad by inducing a Mexican wave in the spectators, despite Vodafone receiving the season’s telecommunication sponsorship^[9]. Jio prevented Vodafone from showcasing its cellular services by forcing spectators to stand in the letter “JIO” setup.

Conclusion

In today’s competitive marketing landscape, ambush marketing has gained popularity among brands due to its creative flexibility and cost-saving advantages, While ambush marketing may have its pros, it also has its cons. Most people believe that ambush marketing is unethical and jeopardises the brand’s reputation. Not just that, it harms the business strategies of actual sponsors who have actually gone through the efforts of paying the sponsorship fee and are actual stakeholders at any sporting event.

However, I believe that the actual sponsors must receive actual protection from any sort of ambush marketing techniques through adequate IPR. Legitimate marketing strategies would be anything that is not against the law or the terms of the contract; nonetheless, its potential impact should be more openly acknowledged during discussions between event organisers and potential sponsors.

Author: Areena Kausar, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

^[1] Nitin Srinivas, Role Of Intellectual Property Rights In Ipl: An Overview,    Indian Journal of Law and Legal Research (June 12, 2023, 2PM), https://www.ijllr.com/post/role-of-intellectual-property-rights-in-ipl-an-overview

^[2] TATA Indian Premier League 2023, Brand and Content Protection Guidelines, Public Advisory Document (June 11, 2023, 12PM), https://bcciplayerimages.s3.ap-south-1.amazonaws.com/bcci/documents/1680174721009_Brand&ContentProtectionGuidelines.pdf

^[3] Id.

^[4] Id.

^[5] Surath Bhattacharjee, Guerrilla Warfare in Sports Sponsorships: Analysing Ambush Marketing and Commercialisation of Sports (2019).

^[6] Rahul Sadhu, Jersey war in IPL 2023: Black tapes on jerseys after Mohun Bagan-East Bengal fans stopped at Eden Gardens, KKR puts onus on IPL rules, Indian Express (June 12. 2023, 2PM),  https://indianexpress.com/article/sports/ipl/jersey-war-indian-premier-league-kkr-mohun-bagan-east-bengal-8623371/

^[7] Naresh Pujari, Complexities of IPR in Sports Leagues: The Way Ahead? (2018).

^[8] Id.

^[9] Id.