A somewhat silent controversy occurring in the sporting industry right now is the rising popularity of ambush marketing. Although not exactly a crime in itself, how ambush marketing is conducted has raised concerns over many companies and individuals with intellectual properties and interest to protect. A Patent Attorney Nigeria from a reputed law firm such as AA Tejuoso & Co. Law Firm can assist you in this regard.
What Exactly Is Ambush Marketing?
In layman’s terms, ambush marketing is any practice wherein a company attempts to market its products at any public event that already has an official sponsor. The “ambush” part connotes the sudden, often unannounced nature of the scheme.
The first “official” account of ambush marketing occurred in the 2016 Olympics when Usain Bolt kissed his Puma shoes after placing first in the 100-Meter Dash despite the fact that Nike was the official Olympic sponsor.
A key characteristic of ambush marketing is that it is, for now, “sui generis” or in a class of its own. As such, IP and Penal laws have yet to adapt and catch up on the act.
Criminality
The first issue to deal with is in identifying what actually could criminalize the act. To do that, one must clearly identify the intentions of would-be perpetrators and the damage they could deal with the offended party.
And therein lies the problem. What ambush marketing intends to achieve and its damages are seemingly non-justiciable under the current legal frameworks.
In the Bolt incident, it can be averred that Usain had no ill intention against Nike. Furthermore, Nike’s designation as the official Olympic sponsor was in no way altered after the event. Neither was its public reputation damaged in any sense of the word.
Constitutional Rights
Should legislation come up with a law that directly addresses ambush marketing, they must do so without becoming unconstitutional. The freedoms of speech and expression are inalienable for any juridical or natural person and should be protected no matter what.
However, even with these rights, persons can still be held criminally liable if their acts of promotion:
- Negatively affects the reputation of other persons (libel and defamation under penal laws)
- Imitates the trademark and other qualifying characteristics of another brand (violations under most IP laws).
The Solution
As of now, the best way to deal with ambush marketing is to lay the groundwork for which it can be identified as an unlawful act. Legislators must carefully craft their laws so that the elements of the act would be established so as to make it criminal under IP laws.
Also, the implementing guidelines have to be worded in a manner to prevent indiscretion from enforcers which could lead to potential violations of the Bill of Rights. If done right, then the courts have the ability to prosecute these acts which, in turn, could prevent others from engaging in such a practice. It’s better to consult a Patent Litigation Attorney in Nigeria.
A.A. Tejuoso & Co 