By Emma Iles, Anna Vandervliet and Byron Turner
Ambush marketing is a term generally used to refer to marketing strategies that involve capitalising on the exposure offered by another company’s event or status. Recent, well-publicised examples have arisen out of the Federation Internationale de Football Association (FIFA) World Cup, including BrewDog's "anti-sponsorship" campaign run in advance of the 2022 World Cup in Qatar.
Ambush marketing strategies leverage off a target company’s reputation in a brand or event, and so carry the risk of infringement of intellectual property rights or breaches of consumer law protections.
The nature of the use of a target brand’s logos, word marks or other ‘get-up’ will be critical in assessing whether the ambush marketing has strayed into trade mark or copyright infringement territory. This includes considering whether such use is for the purpose of identifying the target company as the subject of criticism.
Where representations made in advertising are intended to disassociate the marketer from the target brand, rightsholders may have difficulties in pursuing claims of misleading and deceptive conduct or false and misleading representation under Australian Consumer Law (ACL). Claims of trade mark infringement, which require trade mark use (i.e. use to indicate the origin of goods/services), may also be problematic.
Ultimately, the success of any claim will depend on the advertisement in question and the context in which the target brand is used.
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The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.