SS2104 Week 6 - Legal Aspects of Marketing_Student PDF

Sport Marketing & Sponsorship (SS2104) AY 2024/2025 – S1 Legal Aspects of Marketing – Ambush Marketing  Learning Objectives Distinguish between the three types of Intellectual Property (IP) Be aware of claims and defenc...

Sport Marketing & Sponsorship (SS2104) AY 2024/2025 – S1 Legal Aspects of Marketing – Ambush Marketing  Learning Objectives Distinguish between the three types of Intellectual Property (IP) Be aware of claims and defences against IP infringement Understand the prevalence and reasons behind ambush marketing Apply the ways to prevent ambush marketing Disclaimer : Not Legal Advice! Goal of this lesson – educate broadly on some of these legal concepts  Intersection of Sports and Law Sports Marketing has large financial implications – High value of sports properties and rights associated with them Many cases of legal issues arising from topics surrounding sports properties Sports practitioners need to be aware of these legal aspects of sport  Intellectual Property Rights that protect sports entities – Rewards invention, ingenuity, creativity Creates an open and competitive marketplace 3 types of I.Ps – Trademarks ( , ®) – Patents (Pat. No ##) – Copyrights (©)  Trademarks A word, name, symbol or device used by an entity – Team logos, team name – Many possible types of trademarks Importance: Protecting the identity of sports teams and products Once obtained, can last indefinitely – Renewable every 10 years  Types of Trademarks Trademarks: Identify and distinguish goods – Trade Dress: Protection for overall appearance of product/packaging Service Marks: Distinguish services provided – Broadcasting services (ESPN, Fox Sports) Collective Marks: Represent membership in associations – Sports Leagues, Professional associations  Functions of Trademarks 1. Identify the source of the product or service. 2. Protect consumers from confusion. 3. Ensure product quality. 4. Represent the goodwill of the owner. 5. Reflect substantial advertising investments.  Trademark Infringement Unauthorized reproduction/use of a trademark – In a manner likely to cause confusion False Designation of Origin: False claims about source of product – Where its from, who endorses it Dilution: Trademark’s distinctiveness is weakened by another mark – Blurring: Using mark on unrelated products – Tarnishment: Associating mark with inferior/inappropriate products What needs to be proven + Defences to Trademark Infringements What needs to be proven Defence to Infringement: Ownership of valid trademark Abandonment: If the trademark owner discontinues use. Priority of use – you used it first Fair Use: Use for descriptive or comparative purposes (e.g., ads comparing products Likelihood of confusion – most critical! Genericness: If a trademark becomes too The similarity of both marks generic Harm or damage to trademark Functionality: If the trademark is a functional aspect of the product Example: US Olympic Committee vs Prime Sued Prime Hydration over collaboration with Kevin Durant  Patents Protects new inventions, designs, or processes Ensures inventors are rewarded for ingenuity Encourages innovation in sports industry Once obtained, lasts about 20 years – Not indefinite  Types of Patents Utility Patents: Protect new processes or machines – new sports equipment or software Design Patents: Cover the ornamental design of a functional item – the unique look of a tennis racket  Patent Infringement Unauthorised use, making, or selling of patented invention What needs to be proven + Defences to Patent Infringements What needs to be proven Defence to Infringement: Ownership of a valid patent Invalidity: The patent should not have been granted in the first place Novelty: The invention is new and hasn't been disclosed or used before. Non-Infringement: The accused product or method doesn't fall under the claims of the patent. Non-Obviousness: The invention isn't obvious to someone skilled in the field. Laches: The patent holder delayed taking legal action for too long. Utility: The invention is useful and serves a practical purpose. Experimental Use: The use of patent non commercial  Copyrights Definition: Copyright law protects original works of authorship, such as literary, musical, and artistic works. Governed by the Copyright Act of 1976 and the Digital Millennium Copyright Act (DMCA). Sport marketers need to be aware of copyright laws – Using written, musical, or audiovisual works in their campaigns.  Copyright Scope Copyright applies to a wide range of works: – Literary works: Books, stories – Musical works: Songs played at games (including lyrics). – Audiovisual works: Broadcasts of sporting events, films, and clips. – Dramatic works, Pictorial works, and Sculptural works are also included. Copyright only protects the expression of ideas, not the ideas themselves. Obtained automatically once idea is produced – No need to apply for copyright  Copyright Infringement Definition: Occurs when a copyrighted work is used without permission. Factors the courts consider in infringement cases: – Purpose of the use (commercial or educational). – Nature of the work (creative vs. factual). – Amount of the work used/copied – Effect on the potential market. What needs to be proven + Defences to Copyright Infringements What needs to be proven Defence to Infringement: Originality: The work must be an original creation Fair Use: Use of the work for purposes like by the author. education, commentary, or criticism. Fixation: The work must be fixed in a tangible De Minimis: The use was too trivial to be medium (e.g., written, recorded). actionable. Access: The infringer had access to the copyrighted work. First Sale Doctrine: Once a copy of the work is sold, the original owner can't control its resale. Substantial Similarity: The infringing work is substantially similar to the copyrighted material. Independent Creation: The infringing work was created independently without copying. Example: NBA vs Motorola (1997) Overview: NBA sued Motorola for distributing real-time game scores without NBA's authorization. Outcome: The court ruled that live scores are not subject to copyright protection, but the broadcast of the game is. Key Lesson: Copyright applies to creative expression (the broadcast), not to factual information like game scores. Ambush Marketing Which is a more effective sponsorship? Which do you think costs more?  Ambush Marketing A form of associative marketing, utilized by an organization to capitalize upon the awareness, attention, goodwill, and other benefits, generated by having an association with an event or property, without that organization having an official or direct connection to that event or property (Burton & Chadwick, 2009) Defined as an attempt by competitors to associate its brand with a sponsorship activity without securing the rights or paying the sponsorship fee to do so Primarily an ethical issue However, more laws starting to emerge surrounding this  Reasons for Ambushing 1. High costs of rights fees – If a sponsor can achieve similar results without paying rights fees, ↑ ROI 2. Proven to Work – Numerous cases in sporting events 3. Consumers do not take offense to ambush marketing efforts 4. Advertisers attitudes’ toward the tactic are changing – From perceived as parasite to a creative strategy – “They ambush us, we ambush them”  1994 Olympic Games Official Sponsor Ambusher Wendy’s advertised heavily during the 1994 Olympics using a “Winter Sports Theme” Didn’t violate marketing laws During event surveys: 69% of respondents identified MacDonalds as a sponsor correctly 68% of respondents identified Wendy’s as a sponsor incorrectly Ambush Marketing Strategies 1. Sponsor Media Coverage of the Event 2. Sponsor Subcategories 3. Make a Sponsorship-Related Contribution to the Player’s Pool 4. Purchase Advertising Time During the Rebroadcast 5. Engage in Advertising to Coincide with the Timing of the Event 6. Other Dilution Strategies  1. Sponsor Media Coverage of a Sports Event Buying advertisement space during media coverage of an event – Radio, Television, Internet Streaming Media audience tends to have higher numbers vs spectator audience Legal in Nature – Many circumstances where event organisers have no control over broadcasts  Web Streaming allows for high prevalence of ambushing in today’s world – Streaming service has own ad revenue generating streams – Likely to be different set of sponsors than sporting entity  2. Sponsor Subcategories Sponsoring a lower category associated with the event – Sponsoring teams or athletes – FIFA World Cup, Adidas official sponsor but many different sponsors for each nation Referred as “ambushing up” – Create the false impression that it is involved with the event at a higher level of sponsorship Teams/Athletes might be USP for event – Makes them a better investment source Multiple levels of sponsorship – Need to negotiate broad category exclusively  Nike (Ambusher) vs Adidas One of the best examples of ambush marketing  3. Make a sponsorship related contribution to the players’ pool Non Sponsor providing a cash/value-in- kind contribution to teams or players for achievements Bonus money or prizes for winning Giving an individual/team a sum of money if they managed to clinch a certain place in a competition Results in many incorrectly recognized that the brand is associated with the event  3. Make a sponsorship related contribution to the players’ pool Non Sponsor providing a cash/value-in- kind contribution to teams or players for achievements Bonus money or prizes for winning Giving an individual/team a sum of money if they managed to clinch a certain place in a competition Results in many incorrectly recognized that the brand is associated with the event  Example: Joseph Schooling Won Olympic Gold Medal in 2016 Received many gifts from corporations – 1 million Krisflyer miles – Singapore Island Country Club (SICC) Membership – Lifetime free AirAsia flights – $20,000 in Grab Rides  4. Purchase Advertising Time during the rebroadcast Purchase Advertising Time during the rebroadcast cheaper and access will not be limited by category exclusively agreements more affordable to purchase the commercial time during the replay Potential opportunities for non-sponsor – Access may not be limited 5. Engage in advertising to coincide with the timing of the event Themed advertising strategies Advertise entitites that can be associated with the event » Teams/Players Focusing on the similarities with the event Revolves around traditional advertising strategies Becomes ambush marketing when 2 factors are present – Advertising occurs around the same time as the event – The ambushing company spends more than usual on their advertising  2011 US Open (Tennis) Official Sponsor Ambusher Bought all the advertising space at the train station nearest the event venue Carefully selected words that didn’t infringe on event copyright Event Name, logo  2018 Winter Olympics Social media trend campaigns provide unique avenue for ambushing  6. Use other dilution strategies Mass Purchasing tickets to an event – Distribute them as free gifts or prizes to clients and consumers – Provides illusion that you are the sponsor – Confusion technique Developing creative promotions that consumers naturally associate with the event or property (US Open & Stella Artois) 6. Use other Dilution Strategies Distribution of free clothing at event depicting non sponsor Camera coverage may capture spectators wearing these free shirts  Ways to Protect from Ambush Marketing 1. Learn how to ambush Put themselves in the shoes of their rival and think of solution to counteract the ambush Can be done by developing a plan to ambush oneself 2. Limit the number of sponsorships to a manageable level Reducing the number of sponsors for an event – Mainly for the highest tier Allows for more control against ambush marketing  Ways to Protect from Ambush Marketing 3. Limit a non-sponsor ability to advertise or place signage in close proximity to the event venue – Limitation of any signage of the non-sponsor to appear within a predetermined distance of the venue – Example: “Clean Stadium” Policy (World Cup 2006) FIFA required all non-sponsor corporate signage in the stadium to be removed  Ways to Protect from Ambush Marketing 4. Limit the ability of teams and players to endorse brands that are not efficiently associated with their event Some extreme examples: ICC prohibits players from endorsing products of competitors of event sponsors Rugby world cup prohibited players for wearing clothing with endorsements from non-sponsors Alienates players, creates an unfair situation for people looking for sponsors  Ways to Protect from Ambush Marketing More conservative approach: “Blackout Period” – Allow sponsored entities to wear their endorsed products – Enforce a ban on any advertising/endorsing efforts by the entity  Ways to Protect from Ambush Marketing 5. Proactive surveillance programs Ambush Police – Identifying ambush marketing efforts o Vendors who are selling unlicensed merchandise Care must be taken to avoid overreacting – Alienating individual fans of the event  Ways to Protect from Ambush Marketing 6. More control over advertising by event organiser Broadcast is completely under the control of the event organisers using – Time buy – purchase entire timeslot – Limit broadcaster’s ability to sell advertising time – Restriction on the use of virtual advertising by the broadcaster » Signage are not physically there; misdirect the media viewer  Conclusion Types of Intellectual Property (IP) – Differences between each of them Claims and defences against IP infringement Prevalence and reasons behind ambush marketing Ambush marketing strategies and examples Ways to prevent ambush marketing