THE 2015 ISSA/GraceKennedy Boys and Girls Championships (“2015 Boys and Girls Champs”) will be remembered as an exciting series with numerous record-breaking performances by our young athletes. Interestingly, it will also be remembered for the dramatic unveiling by Calabar High School athlete Michael O’Hara of a controversial endorsement.

O’Hara lifted his team jersey to reveal a red and green undershirt with the words ‘Be Extraordinary’, the brand slogan for the telecommunications company Digicel, a non-sponsor.

Many viewed the reveal as an act of guerilla marketing while some described it as a creative sponsorship announcement. However it may be viewed, the fact is “O’Hara’s unveiling” is one of the many tactics used worldwide by non-sponsors attempting to associate themselves with events of this nature.

The act of ambush has been described as ‘parasitic marketing’, although those engaged in it would characterise and justify it as ‘clever marketing’.

Basically, ambush marketing occurs where an entity advertises at an event without permission to do so. In such a case, sponsors do not get the full value that they have bargained for.

Event sponsorship has become a multimillion- dollar industry worldwide for which sports sponsorship represents some 88 per cent of the total value. With such investments the need to ensure that sponsors enjoy maximum leverage is paramount. The challenge, therefore, involves a balancing act of protecting the investments of the event sponsors while not restricting non-sponsor entities’ reasonable freedom of expression.

From a legal point of view, ambush marketing is still being considered under domestic trade mark or competition laws in several countries including Jamaica. It continues to be a controversial yet infrequently litigated issue and there is no internationally recognised law in this area. Any such claim is unlikely to be successful under trade mark infringement law where ambushers usually create and use their own marks and names.

The more likely legal recourse would be under either false advertising, the tort of passing-off or breach of contract. In the United Kingdom, there is no specific legislation for ambush marketing claims. The protection may be exercised through the British Code of Advertising and Sales Promotion against advertisements that do not comply with the Code. Similarly, in Jamaica, there are no specific laws for ambush marketing claims, and so entities are left to rely on domestic trade mark and/or competition laws where applicable.

The absence of legislation has led to the development of event-specific legislation to tackle such acts of ambush. Examples of this include the Sydney 2000 (Indicia and Images) Protection Act (1996), the Olympic Arrangement Act in Australia, the Olympic Symbol (Protection) Act (1995) in the UK and the ICC Cricket World Cup Act of 2007 in the Caribbean to facilitate the ICC Cricket World Cup in 2007 (“ICC CWC”). These specialised statutes were designed to secure the legal framework for each event, including provisions for the control of venues, the control of certain aspects of security and the protection of event sponsors’ intellectual property. The ICC World Cup Act in particular provided for both civil and criminal sanctions against acts of ambush.

This short-term and reactive approach demands reconsideration. The continued acts of ambush coupled with the continued prominence of sporting events in the Caribbean should force us to evaluate the effectiveness of event-specific legislation.

The problem is that event-specific legislation fails to prevent ambushers from using generic words such as “Be Extraordinary” in suggesting an association with the relevant event.

In instances where legislators have attempted to restrict the use of generic words the result has been a widespread prohibition which can stifle freedom of expression and the marketers’ creative appetite.

A prime example of this was during the course of the Vancouver Winter Olympics (2010) where the Canadian Government imposed restrictions on the use of generic words, such as ‘winter’, ‘gold’, ‘silver’, ‘bronze’, ‘sponsor’, ‘Vancouver’, ‘Whistler’, ‘2010’, ‘tenth’, ‘medals’, ‘games’, etc. This resulted in widespread criticism citing breaches of freedom of speech by many corporate entities.

There is still no effective legal framework to address ambush marketing. The challenge remains of balancing the preservation of the commercial attraction of official sponsorship with the marketers’ ability to creatively brand and advertise.

Maybe our O’Hara example will challenge both event organisers and legislators to begin conceptualising amicable solutions for all parties. The reality is we must prepare for the likely increased instances of ambush marketing as the popularity of sporting events grows.

Danielle Stiebel is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Commercial Department. Danielle may be contacted via Danielle.Stiebel@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.