The Minister of Trade & Industry has indicated his intention to designate the 2013 Africa Cup of Nations (AFCON 2013), which is set to take place in South Africa in early 2013, as a “protected event” in terms of South Africa’s ambush marketing legislation. 

What is ambush marketing?

Any attempt by a trader to connect itself with a sponsored event, whether it is a sporting event, music concert or some other sponsored event, without paying sponsorship fees, can be considered ambush marketing. The need to protect sponsor’s rights in these situations is of paramount importance.  Sponsors often pay millions of dollars for the exclusive marketing rights afforded by their sponsorship deals and this provides funding for the events.  It follows that failure to protect these rights could jeopardise the events themselves.

When a trader or advertiser either directly or indirectly creates the impression that it is associated with an event, or is an official sponsor of the event, this is termed ambush marketing “by association”.  When a trader or advertiser simply attempts unfairly to benefit from the publicity surrounding an event and to gain exposure for its own brand at the expense of the event, this is termed ambush marketing “by intrusion”.  Both forms of ambush marketing are prohibited under South African law but the latter form is specifically catered for in Section 15A of the Merchandise Marks Act.  This is the section in terms of which the Minister is now seeking to protect AFCON 2013.

Essentially, the relevant provision prohibits a third party from using its own trade mark, without authority from the organiser of the event, in a manner calculated to achieve publicity for the trade mark and thereby to derive special promotional benefit from the event.  This includes any visual or audible use of the trade mark which in any way, directly or indirectly, is intended to be brought into association with or to allude to any event. 

The contravention of this provision is a criminal offence.  The High Court also upheld the effect of the provision during the 2010 FIFA WORLD CUP event, which had also been designated as a “protected event”, when it ordered Metcash Trading Africa (Pty) Limited to stop selling certain “2010 POPS” lollipops.

Forms of ambush marketing

The most basic and common type of ambush marketing is the misappropriation of an event organiser’s trade marks, images or logos in advertising.  More insidious forms of ambush marketing involve, for example, handing out samples, products or free branded items at events.  Sometimes, traders seek to benefit from the publicity surrounding an event by giving away tickets to the event or running other promotional competitions in connection with the event. This, too, may constitute ambush marketing.

Conclusion

The Minister’s proposed designation of AFCON 2013 as a protected event is open for public comment until 15 December 2012. It is likely that the designation will then be made final and the event will be protected. Unless they wish to land themselves in hot water, South African businesses would do well to avoid either direct or indirect references to the event in advertisements and rather focus on the legitimate benefits which will arise from the event, such as the potential increase in tourism and international exposure. And, above all, enjoy the game.

Written Kelly Thompson, partner Adams & Adams, Tel: 012 432 6000