Ambush Marketing: Here to Stay?

“Ambush marketing,” a term coined by Jerry Wexler, manager of global marketing efforts for American Express in the 1980s, refers to the marketing activities of companies that manage to associate themselves, or their products or services, with high-profile events without paying to become an “official sponsor.” Wexler lucidly describes an ambush marketer's motivations in the 2002 “IEG Sponsorship Report” published by IEG, Inc.:

Given the escalating price of major sponsorships, it is hardly surprising that some companies willingly pass on the opportunity to sponsor and search instead for ways to compete in the sponsored space without bearing the onerous costs and the heavy burden of the scandals and other misadventures often associated with large, modern sponsored properties.

The point is that sponsors do not buy the rights to all avenues leading to the public's awareness of a given property, and more importantly, do not buy the rights to the thematic space in which the purchased property is usually the only one resident. In other words, all else other than that which is specifically purchased is up for grabs.

This article looks at several examples of ambush marketers seizing opportunities that are “up for grabs” as well as the corresponding legal strategies employed by event organizers and official sponsors to combat such activities. Overall, despite the best efforts of the various event organizers and official sponsors, ambush marketing cases are rarely actionable. Careful ambush marketers avoid using the trademarks, trade names, copyrights or other exclusive intellectual property rights associated with a given sponsored event, making it difficult to successfully assert infringement claims.