Ambush marketing : a source of distress for event organizers

On February 10, 2012, the Paris Court of Appeal defined Ambush marketing as “the fact, for a company, to makes itself visible to the public during a sporting or cultural event in order to associate its image with it, while avoiding paying the organizers and becoming an official supporter.” This practice implies an aggressiveness on the part of the author, the ambusher, to divert the attention of the public of an event to his profit.

Fortunately, event organizers are not helpless against this kind of behavior.

They have the possibility to register the relevant identification elements such as the title of the event or the logo as a trademark. This protection is one of the most prized by the organizers as it provides ownership of the title and allows them to prohibit explicit reference to the trademark in the course of trade.

Another tool is the action for unfair competition and parasitism, insofar as it consists of parasitic acts by an economic agent “to interfere in the wake of another in order to profit, without spending anything, from its know-how and investments not protected by an intellectual property right”

As for the French Consumer Code, it targets these practices if they are misleading by sanctioning behavior that creates confusion with a competitor’s services and is based on information that is likely to mislead.

Thus, the Paris Court of Appeal recognized on June 8, 2018 that the mention of the term “official“, without the organizer’s authorization, in a communication dedicated to the Cannes Film Festival was an unlawful act, as it particularly designates the event’s partners.

However, it must be noted that the remedies available to the victims of these practices are limited.

Indeed, the protection of titles, as trademarks, is often rejected, as they describe the events and are therefore not perceived as an indication of origin.

On the other hand, the trademark infringement action is only possible if the ambusher mentions the trademark of the organizer. However, in most cases, he will mention his own trademark in order to counter any infringement action.

In addition, because of the freedom of trade and industry, a non-exhibitor is perfectly free to communicate by words or images around a cultural universe. The use of terms such as “Cannes” in a communication is therefore lawful.

The ambusher’s fault thus requires the proof of an abusive use through the mention of the event and of terms such as “sponsor“, or of the marks or other symbolic elements of the event.

It is therefore essential for the victimized organizer to quickly build a solid case and support evidence to demonstrate the fault of the ambusher and the damage suffered.

− Nathalie FAYETTE, IP Attorney and Founder of Mark & Law & Isabella MOUSTIQUE, IP Legal Intern at Mark & Law

Sources:

• Paris Court of Appeal, February 10, 2012, No.10/23711, Cinq-Huitièmes
• Paris Court of Appeal, June 8, 2018, No. 17/12912
• French Court of Cassation, October 31, 2006, No. 04-18.043, CNOSF vs. Groupement d’achat Edouard Leclerc
• Ambush Marketing Definition. Definitions-marketing.com. [Accessed on May 9, 2022], accessible by clicking here.