Last month, The Age reported that two Dutch women were arrested for ambush marketing at the FIFA World Cup in South Africa. The stunt involved 36 Dutch women wearing orange dresses made by a Dutch beer company - one that had no sponsorship rights for the event. What is Ambush Marketing?

Ambush marketing can be defined as a marketing activity staged around an event, without any official sponsorship arrangement existing between the event hosting body and the marketer. Major sporting events are regularly a target for ambush marketing, as they represent an attractive opportunity to expose products and their benefits over their competitors, without the overheads of official sponsorship.

The Risk

Ambush marketing can be a major risk to sponsors and organisers of an event. To a sponsor, serious devaluing of sponsor benefits can occur if marketing and advertising rights are not exclusive. If exclusivity and sponsor rights are not strongly defended, legal action can result, and a fall in demand for future sponsorship will occur. This represents a significant commercial risk to all event owners.

In any event risk management plan, it is important to identify potential ambush marketing activities and, where required, consider establishing a brand protection program. Controls may include working with local authorities and businesses to monitor commercial activities within the event precinct, and establishing in advance a protocol with marketing managers and security for responding to ambush marketing incidents.

The Law

In Australia, aside from where State Government legislation has been enacted to protect sponsor rights for a major event, the primary legislation protecting sponsors is Section 52 and Section 53 of the Trade Practices Act 1974, which respectively state:

A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (Section 52)

A corporation shall not... : (c) represent that goods and services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;

(d) represent that the corporation has a sponsorship, approval or affiliation it does not have. (Section 53)

Ambush marketing activities can be successful and avoid prosecution under this legislation where they indirectly imply an affiliation with an event rather than making direct and misleading claims of association. Such strategies are often based upon sound legal advice sought by the ambusher.

Ambush marketing can represent a significant legal and financial risk to public venues and events as, depending upon the venue layout and location, physical risk controls that hinder potential ambush marketing may be difficult to implement.