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«Sponsorship Program Protection Strategies for Special Sport Events: Are Event Organizers Outmaneuvering Ambush Marketers? Steve McKelvey University ...»

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Other prohibited activity within the Clean Zone includes: (1) unauthorized commercial activity on public property or into the public right-of-ways; (2) unauthorized activity geared to the general public promoting a brand, product, or service that extends into or is visible from public right-of-ways, and (3) any unauthorized association with the NCAA or its tournament. (NCAA Memorandum, 2006a) This section also specifically stated that the clean zone is not targeted to private, tented events or hospitality where signage is limited to discreet placards identifying the sponsor of the event. Nor is it directed at permanent, fixed-signage locations. Again indicative of the NCAA’s soft-handed approach to the topic, the letter concluded by providing a list of NCAA contacts with phone numbers and e-mail addresses. It is arguable that this softened tone, more intended to educate than to threaten, may be better received by its audience and therefore more effective.

The Guidelines document included with this letter focused specifically on the NCAA’s trademark rights and provided guidance on the “do’s and don’ts” of affiliating with the Final Four without infringing on the NCAA’s intellectual property rights. The Guidelines began by stating that the businesses are prohibited from the

use of NCAA logos and marks:

Such use and references to the championship, no matter how vague and distant (emphasis added), create a non-permissible association between the event and the business. [NOTE: Please keep in mind that names, logos, and mascots of NCAA colleges and universities are protected by intellectual property laws as well.]. (NCAA Memorandum, 2006a) In addition to providing a litany of protected trademarks (e.g., “Final Four,” “Final 4,” “March Madness,” “The Big Dance,” “Elite Eight,” “NCAA Sweet 16,” “The Road to the Final Four,” and “The Road to [name of host city],” among others), the Guidelines also, interestingly, provided, a list of “permissible phrases” and the

permissible items on which these phrases could appear. These phrases included:

“Welcome to (host city), college basketball fans,” “Welcome hoop fans,” and “Come to XYZ store to help celebrate/enjoy the big basketball event,” which may be used in marketing materials limited to table tents, napkins, cups, menus, pennants and banners (NCAA Memorandum, 2006a). Conspicuous by its absence was the ability Sponsorship Program Protection Strategies of companies to use these permissible phrases in print or broadcast advertisements.

By providing these generic options, the NCAA was able to not only better educate local businesses, but also to strengthen their position with respect to enforcement of their trademarked phrases.

To address potential ambush marketing on a national level, the NCAA also sent a second, separate memorandum to “Selected Newspapers and Radio and Television Stations; Selected Advertising, Marketing and Promotion Agencies; and Selected Other Businesses/Corporations” (NCAA Memorandum, 2006b). This letter took

a similarly soft-handed approach:

Through this memo, we are once again enlisting your assistance in following certain policies related to the upcoming 2006 Men’s Final Four.... The NCAA’s efforts to protect the goodwill associated with its championships is no different than the efforts that you undertake to protect your business’ name or logo. Just as you want to be able to determine who uses your name commercially, so does the NCAA. (NCAA Memorandum, 2006b) This letter, also accompanied by the Guidelines document, primarily addressed the use of NCAA intellectual property in advertising and marketing campaigns: “We ask that you refrain from any direct or indirect usage of the NCAA’s championships, tickets or marks/logos unless and until you have obtained the prior written consent of the NCAA and specifically our corporate alliances staff” (NCAA Memorandum, 2006b).

This letter also arguably “stretched the truth” in stating that:

Federal regulations support the NCAA’s effort to prohibit... any use of NCAA championship tickets in sweepstakes, promotion, or contests, or any other unfair attempt to associate with or exploit the goodwill of any NCAA championship event. This includes a prohibition against the display of any commercial identification within an NCAA championship bracket. (NCAA Memorandum, 2006b) While such statements may be effective in discouraging some of those less savvy marketers and media outlets, those companies consulting legal counsel are less apt to comply, given that the NCAA’s legal claim regarding “federal regulations” is reaching. As discussed earlier, the law with respect to unauthorized use of event tickets remains unsettled. Second, there has been no adjudicated U.S. case that suggests that companies who “attempt to associate with or exploit the goodwill” of an event would be liable. Third, media outlets typically stand behind the First Amendment as well as the nominative fair use doctrine in defending their right to incorporate their advertisers into the NCAA bracket. As for the effectiveness of its

pre-education campaign, the NCAA’s associate general counsel explained:

Our view is that the educational campaigns are helpful as a deterrent, but also to help explain our position from a public relations standpoint. I can’t say one way or the other about whether general basketball imagery ads have decreased. We can only go so far as what trademark law allows. We cannot prevent former student-athletes, basketball personalities, or coaches from offering endorsements so long as our marks are respected. Do I consider these 564 McKelvey and Grady techniques ambush marketing? Absolutely. But, probably not much can be done under present law. (S. Bearby, personal communication, May 24, 2007) Hence, companies and media outlets intent on associating with the Final Four are likely to continue to find ways to do so within the parameters of the law, particularly since the NCAA does not enjoy the broader trademark protections afforded the USOC through the Ted Stevens Olympic and Amateur Act of 1998.

Another tactic employed by event organizers is to run advertisements in trade journals and newspapers designed to educate the industry and consumers about the rights of official sponsors and the evils of ambush marketing. For example, the NCAA regularly places advertisements in trade publications that are designed to educate and warn the industry (including marketing and promotion agencies) about engaging in ambush marketing. One such advertisement, titled “How to avoid a

blocked shot,” emphasizes that advertisers should not ambush the Final Four:

If you’re thinking of scoring marketing points through use of NCAA references, please remember that the unauthorized association with the championship or use of NCAA trademarks and tickets are violations of the NCAA’s property rights. Only official NCAA corporate partners have the right to use NCAA marks, logos, references and championship game tickets in advertising, marketing and promotions. (Advertisement, 2006).

A more aggressive tactic of event organizers is to use the threat of a high-profile public reprisal as a means of deterring nonsponsors, as well as their promotion or advertising agencies (the theory is that agencies may be reluctant to create a campaign that could expose their client to public ridicule). This tactic dates back to the 1996 Olympic Games in Atlanta, when the International Olympic Committee threatened to publicly expose the CEOs of nonsponsors through press conferences and newspaper ads (McKelvey, 1994b). Obviously, however, the proven willingness to follow through on such threats ultimately determines the effectiveness of this tactic. One recent example occurred during the 2006 Olympic Winter Games, when Canada-based Imperial Oil initiated a “Cheer on Canada/Torino, Italy” consumer sweepstakes offering a trip to watch the Canadian men’s and women’s ice hockey team (Ski Press, 2005). Imperial Oil was an official sponsor of Hockey Canada (the country’s governing body for ice hockey), although it did not have any official sponsorship rights to the Olympic Games itself.

After two weeks of unsuccessful attempts to contact the CEO of Imperial Oil, the CEO of the Vancouver Olympic Organizing Committee (VANOC), host for the 2010 Olympic Winter Games, held a press conference near the corporate headquarters of Imperial Oil to denounce the company’s actions as that of “an Olympic pretender” (Bridge, 2005). Following that public reprisal, VANOC’s CEO flew back to Vancouver and held a second press conference to again publicly denounce the actions of Imperial Oil. Imperial Oil subsequently modified its campaign to be in compliance with VANOC’s request (Bridge, 2005). As stated by VANOC’s senior vice-president of revenue, marketing, and communications: “It was unfortunate that it had to go to that step to make it public, but as a result of it, we got people’s attention. And people are a little bit more careful now to make sure they’re respecting the parameters that we need to follow” (McArthur, 2006, p. B4). This Sponsorship Program Protection Strategies situation, an example of “sub-sponsorship” (Meenaghan, 1998), exposes one of the ambiguities of ambush marketing that often arises when a company has purchased sponsorship rights to a particular team within a sport organization’s hierarchy of sponsorship opportunities. As an official sponsor of Hockey Canada, Imperial Oil has a legitimate right to leverage its sponsorship rights without being labeled an ambush marketer. Absent restrictions on the ability of companies to engage in subsponsorship, it is arguably unreasonable for event organizers such as the IOC and VANOC to classify such activity as “ambush marketing.” On a broader scale, pre-event education and public relations initiatives, while well-intentioned, have several limitations in terms of effectiveness. First, these initiatives are premised upon a pliant and cooperative media that typically has little if any vested interest in protecting the sponsorship rights of event organizers.

Second, research studies have consistently found that the public (i.e., consumers) is largely uninformed or unaware about the classification, identification and recognition of sponsors (McDaniel & Kinney, 1998; Sandler & Shani, 1989, 1993; Shani & Sandler, 1998), do not care about ambush marketing (Lyberger & McCarthy, 2001; Shani & Sandler, 1998), and do not consider ambush marketing to be unethical (Shani & Sandler, 1998). Third, companies that understand the conceptual ambiguities of ambush marketing, and the extent of their legal rights are less likely to be swayed by the self-serving efforts of event organizers. These factors serve to limit the effectiveness of event organizers’ pre-event education and public relations initiatives.

Onsite Policing As discussed earlier, nonsponsors can get clever in creating a presence in and around

event venues. The overall strategy of onsite policing includes numerous tactics:

(1) patrolling of venue areas to remove ambush marketing activity; (2) covering of nonsponsor logos, which has even been extended to the removal of corporate stadium names on competition venues; (3) securing of commercial inventory (e.g., billboards) for event organizers and their official sponsors; (4) controlling access to ticket blocks and hospitality opportunities, and (5) establishment of clean zones, usually through temporary ordinances enacted by local governments as a condition for hosting the event.

Ambush Marketing Patrols Perhaps no tactic of sponsorship program protection has seen a more proactive and arguably aggressive approach than onsite policing of venues. Several high-profile examples serve to illustrate this practice. At a 2003 cricket match between Australia and India, a South African businessman who was drinking Coca-Cola and refused to surrender another three unopened Coca-Cola cans was removed from the stadium. Pepsi was an official sponsor of the Cricket World Cup although the company distanced itself from this unfortunate episode (Ward, 2006). Similar onsite policing occurred during the 2004 Olympic Games in Athens when security guards, seeking to protect the rights of official sponsor Coca-Cola, confiscated cans of Pepsi when patrons tried to go through entrance gates to competition venues (Gibson, 2004).

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