Over the past few decades, the tactic of ambushing an unsuspecting enemy has migrated a long way from camouflaged overalls and combat boots, in times of war, to suits and ties in times of high profile events.  Ingenious taglines, strategically placed products and an attraction to flirt dangerously with the rules has created a form of advertising that has come to be known as "ambush marketing".

Ambush marketing, simply put, occurs when a non-sponsor of an event (and usually a competitor of an actual sponsor) attempts to create a sense amongst the public that it is in some way connected to the event either: by using the event’s logos, symbols, or trade marks in its own advertising campaigns (ambush marketing by association); or by taking advantage of the publicity surrounding the event to promote its own brand, sometimes to the detriment of the event itself and its sponsors (ambush marketing by intrusion).

Ambush marketing has been a hot topic in almost all large scale sporting events ever since the 1984 Olympics when Kodak (not an official sponsor) snuck up on Fuji (one of the official sponsors) by running a series of campaigns that alluded to the mistaken idea that they were official sponsors of the event. Now, ambush marketing has become more of an inevitably than a surprise. 

Years ago, South Africa’s laws were not equipped to efficiently deal with ambush marketing. More recently, however, we have seen the introduction of the Trade Practices Act, the Advertising Standards Authority (ASA) Sponsorship Code, and an amendment to the Merchandise Marks Act.  These have all gone a long way in ensuring that the commercial interests of sponsors are protected, which is necessary to ensure the longevity of these kinds of sponsorships in respect of events.  In fact, South Africa’s well stocked artillery of ambush marketing legislation played a significant role in winning the bid to host the 2010 FIFA World Cup. 

With the 90th edition of the Comrades Marathon just around the corner, the Comrades Marathon Association (CMA) has recently issued a media statement proclaiming that they have taken a “Zero Tolerance” approach to ambush marketers. 

The CMA has gone on the offence, alerting would-be marketing predators to the ASA Sponsorship Code, and reserving their rights to institute legal proceedings where they deem necessary. 

The ASA is a voluntary body constituted by the advertising industry.  Its Sponsorship Code prohibits ambush marketing as an unacceptable sponsorship practice.   Article 3 of section 10 of the Code provides that the “Imitation of the representation of other sponsors should be avoided if this misleads or generates confusion, even when applied to non-competitive products, companies or events”; and Article 11 of section 10 reads, “No organisation, other than the official sponsor, may directly or by implication create an impression that its communications relate to a specific event or create an impression that they are an official sponsor of such an event”.
Failure to comply with the Sponsorship Code could lead to the ASA ordering its members, including the print and media industries, to withhold advertising space or time from the offender.  What bolsters the appeal of pursuing a complaint with the ASA in terms of the Sponsorship Code is that it is often a much more cost efficient and less time consuming approach compared to pursuing the matter in a High Court in terms of the Trade Marks Act, or the Merchandise Marks Act. 
This year, the CMA has also adopted a practical approach to protect itself and its sponsors from ambush marketing, by recruiting the SAPS and specially trained “route monitors and brand sheriffs” into its infantry, in order to assist with identifying and confiscating any illegal products and removing guilty parties from the route.

As the Comrades Marathon draws closer, perhaps marketers seeking to cash-in on the event’s publicity should look to the almost 23 000 athletes that will be competing in this year’s race for guidance: play hard, but play fair.

Written by Sinal Govender, associate at law firm Adams & Adams