Where to Wear

August 30, 2013

 

 

OVERVIEW

 

            Many would agree, with considerate fire and passion that sports events always bring an outburst of strong emotions of the crowd, it likewise influence people’s behavior and social values. Undeniably, the massive collective gathering of people interestingly discloses an unexplored consumer market[i]. Big companies come in, getting their chance and opportunity to advertise their products by exclusively sponsoring such events thus giving them full exposure of their brands as seen by the whole world.

 

            Organizers of events as this in turn benefit from the sponsorship provided by the companies because staging an event would require huge fund in carrying it out and this would normally come and derive from companies who would shell out huge amount of money and in turn reciprocally benefit because of the exclusive, unlimited and overflowing display/advertisement of their brands on the whole duration of the event.

           

            Predictably a very effective strategy of promoting a brand due to the fact that it would invite the public’s mind of how good the product is by associating it with the event’s goodwill by carrying it’s name and logo. Riding with the popularity as well is another thing.  No wonder  why Pepsi, has, for the longest time, been the official sponsor of the Super Bowl in the United States, one of the much awaited event and attended by millions of spectators and marketing wise, equates to millions of profits and attracts more consumers.  Another notable example is the Fifa World Cup and the Olympic Games where different brands would set an enormous price in return for an exclusive exposure of their brand.

 

 

AMBUSH MARKETING and TRADEMARK ISSUES

 

            Inevitably, sports events and ambush marketing somehow cannot be separated as this has been a problematic area among organizers of events. But how is ambush marketing defined by the way? Ambush Marketing is defined as the company’s attempt to capitalize on the goodwill reputation and popularity of an event by creating an association not authorized or consented by the necessary parties[ii].

 

            One famous example I have read so far was when several Dutch Girls wearing orange dresses that is associated with a dutch product Bavaria which is completely a competitor of the official sponsor of the event which was Budweiser. The said Dutch girls were asked to exit from the venue and have been charged for organizing unlawful commercial activities[iii]. It appears from the foregoing that ambush marketing has been a serious threat to organizers of event because they have a duty to protect the sponsored brand from losing profits because of intrusion of ambush marketers.

           

            In connection with the prevailing occurence of ambush marketing that is, trademark issues such as infringement, unfair competition and misappropriation of goodwill, the Lanham Act is of significant to refer to where it provides sports entities legal remedies from trademark infringement and misappropriation of goodwill[iv].  Clearly, it prohibits other products from advertising their brands so as to create confusion or mislead the public that such brand is affiliated or is connected with the event giving them totally an instant free ride and advantage.

 

            On this account, Trademark infringement comes into picture and is defined as that occurs when there is an unauthorized use of a trademark- or a confusingly similar name, word, symbol or any combination of these- in connection with the same or related goods or services and in a manner that is likely to cause confusion, deception or mistake about the source of the goods or services[v]. In these instance, trademark infringement would typically fall or happen when a brand not authorized try to affiliate itself giving the impression that such brand has a connection with the event.

                       

 

 

OF FREEDOM OF EXPRESSION

 

            This to me raises much more interesting question as regards to an ordinary spectator of an event, wearing a non sponsored brand and will be unceremoniously ejected from the scene. Will it be treated as a trademark infringement under the law?

 

            So if I for instance would go to an event wearing a “Globe tshirt” where in fact the official and exclusive sponsor of this event is “Smart”, will that constitute a trademark infringement?

 

            Being on the liberal side, I firmly submit to the view that equality prevails over dictating one’s human choice. The dominant entity cannot empower itself from restricting an individual from freely expressing himself through wearing his own clothes which has an element of personal freedom of expression. This basic and fundamental right cannot be curtailed as it will run counter to the very aim of bill of rights upheld and recognized firmly by our constitution.

           

            I embrace the fact that individuals should be freely and openly choose what they desire in matters may it be in speech or in clothing.  Accordingly, a liberalist approach would yield expansively towards giving everyone equality, that is a balanced prospective over things, freedom which basically putting an individual in a state where he enjoys being at liberty and free to act without any confinement or restrictions. My right to freedom of expression should never be curbed as I, as possible has all the rights to exercise it.

 

            On the question, am I creating a wrongful association with respect to the event, In the eyes of the spectators like me, certainly there is no violation of the law as it would not create confusion or likelihood and will not fall within the coverage of the ambush marketing or even trademark infringement likewise. In order to prove a commission of a trademark infringement, one must prove that and must be shown that it would create a confusion on the part of the public.

 

            In the case of Prosource International, Inc. versus Horphag Research Management SA.[vi] It emphasized the element of likelihood of confusion which according to the case is the gravamen of trademark infringement. Moreover, it states that “likelihood of confusion is a relative concept. The particular, and sometimes peculiar circumstances of each case are determinative of its existence. Thus, in Trademark infringement cases, precedents must be evaluated in the light of each particular case.”

           

             Arguably, the given statement above will support the argument that the wearing of a non sponsored clothing in an event for instance would not violate any law pertaining to trademark infringement.

 

 

           

 

 

 

 

 

 

 

 


[i] http://www.mondaq.com/x/117458/Trademark. Retrieved, August 28,2013

[iii] http://news.bbc.co.uk/2/hi/8743881.stm. Retrieved, August 28, 2013.

[v] Black’s Law Dictionary, 9th Edition.

[vi]  G.R No. 180073, November 25, 2009

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