Ambush Marketing Risks During the Olympic Games

July 2024

By Pierre Favilli,
Industrial Property Attorney,
Deputy Managing Director, LEGIMARK

While the general public is aware of the inherent risk in reproducing or imitating Olympic emblems and properties protected by the Sports Code and the Intellectual Property Code, it is also important to warn against the risks posed by commercial communications that suggest an official partnership with the Olympic Committee. Explanations.

Definition of Ambush Marketing

Resources from partnership contracts represent one-third of the finances required for organizing the Olympic Games. The sums involved are considerable, as evidenced by the amount spent by LVMH to become a premium partner of the Paris 2024 edition, estimated at approximately 150 million euros. While many operators cannot afford such sums to be an official partner of the event, some are willing to implement a commercial strategy aimed at profiting from the favorable context at a lower cost.

Ambush marketing refers to an advertising practice aimed at taking advantage of a sporting or cultural event to associate one's image with it and gain public visibility, without compensating the event organizer. While not prohibited in principle, ambush marketing can be condemned on the grounds of tort liability, under the concept of economic parasitism, which is defined as "all behaviors by which an economic agent intrudes into the wake of another to profit, without spending anything, from their efforts and know-how" (Cour de Cassation, Chambre commerciale, January 26, 1999, 96-22.457). More precisely, acts of ambush marketing can be likened to acts of parasitic behavior. Unlike acts of competitive parasitism, acts of parasitic behavior do not require a competitive relationship between the parties involved nor a risk of confusion between the products and services respectively offered. The judges of the Paris Court of Appeal summarize it as follows: "The act of a company making itself visible to the public during a sporting or cultural event to associate its image with it while avoiding compensating the organizer and becoming an official supporter constitutes a situation of ambush marketing, which is a fault under the provisions of Article 1382 of the Civil Code (...) However, it matters little under the provisions of Article 1382 of the Civil Code whether the company (...) is or is not in a competitive situation with the company (...), since it is up to the plaintiff to demonstrate that the behavior of the legal entity they are pursuing is wrongful due to its failure to respect the rules of fairness and integrity that govern all commercial relations." (CA Paris, February 10, 2012, Case No. 10/23711).

The Olympic Games are frequently the scene of ambush marketing acts. Let's cite two cases identified during the London 2012 edition. By performing his sprint with a 500,000 dollar Richard Mille watch on his wrist, athlete Yohan Blake gave significant visibility to the watchmaker, to the detriment of Omega, the official partner of the competition. For its part, by distributing its audio headphones to numerous athletes, Beats gained greater visibility than Panasonic, despite the latter being a sponsor.

Condemnation of Ambush Marketing on the Grounds of Economic Parasitism

While acts of ambush marketing can take multiple forms, French jurisprudence indicates that these will be condemned on the grounds of economic parasitism when they contribute to creating a link, in the public's mind, between the economic operator not benefiting from official sponsor status and the event to which it is linked, in order to profit, without spending anything, from the efforts made by the organizer.

The reproduction of the name of a sports competition by a third party to promote its activity is thus punishable when it cannot justify a necessary use (Paris Court of Appeal – Pôle 05 ch. 01, October 14, 2009 / Case No. 08/19179). In this case, a sports betting site was prosecuted for using the name "Internationaux de France", which is the official designation of the Roland Garros Tournament. The judges considered that the publication "Bet on the French Internationals [...] Bet today on the 2 men's semi-finals opposing Roger Federer to Nikolay Davydenko and Novak Djokovic to Rafael Nadal" did not serve to promote only sports bets related to the Roland Garros Tournament but more generally all bets offered by the defendant company, also covering the Australian Open, thus likening this commercial strategy to acts of parasitic behavior.

Furthermore, a simple lottery addressed to a company's clients with the aim of winning access tickets to a competition can be condemned if it fosters the idea of official partner status (Versailles Court of Appeal – 1st chamber 1st section, March 10, 2016 / Case No. 14/00536).

The same applies to advertising associating a company with athletes or a team competing in a competition (TJ Paris, June 27, 2014, Case No. 12/12555, FFR / Wilkinson – JWT). A few days before the 2011 Rugby World Cup final, ENERGIZER GROUP FRANCE published a poster associating its Wilkinson brand with the statement "Go Marc, shave off that mustache (...) Wilkinson encourages Marc Liévremont and the French XV for their final." The judges thus considered that this advertisement, directly mentioning the French rugby team and its coach, suggested the idea of an official partnership. They also noted the importance of considering the commercial context to assess acts of parasitic behavior, including the publication date of the impugned communication. Thus, the closer an act of ambush marketing is carried out to the date of a competition, the greater the risk of it being condemned on the grounds of economic parasitism.

A particularly interesting decision was rendered following the use of Olympic colors (TGI PARIS, 3rd chamber, June 13, 2014). Approximately three months before the start of the London Olympic Games, the company Le Coq Sportif presented new sneakers whose soles featured the Olympic colors, without these being presented in the form of rings. It should also be noted that these shoes, designated under the name "The Olympic Dream", were associated with the image of athlete Joakim Noah, who was supposed to participate in the competition. It was by assessing the appearance of the products and their presentation conditions that the judges considered that the French company sought to insert itself into the wake of the London Olympic Games. The inspiration from Olympic Committee attributes made shortly before the start of the competition was thus recognized as an act of parasitism. In this case, the commercial association with a globally known athlete who was supposed to participate in the Games only reinforced the idea of a link, in the public's mind, between the event and the company Le Coq Sportif. The latter defended itself by stating that the disputed shoes had not been offered for sale but were only presented on its website and offered for pre-order in a few rare boutiques. Indeed, only about fifty pairs of sneakers were available, and their price barely exceeded 100 euros. In this context, the judges did not, however, consider the damage suffered by the Olympic Committee to be minor. On the contrary, they ruled that the purpose of the pre-sale of these sneakers was to create an event around their release and to offer visibility to the brand, rather than to generate profits directly from the commercialization of the model. Given the public enthusiasm generated, the Committee suffered a loss of earnings that could be quantified as the amount it would normally have received for this communication operation if the defendant had entered into a paid partnership with it. Also noting that the latter suffered reputational damage with its official partners, who might doubt the value of seeking official Games partner status, the judges thus ordered Le Coq Sportif to pay the Olympic Committee the sum of 100,000 euros in damages.

Given the diversity of condemnations of ambush marketing acts in the context of major sporting competitions, it is legitimate to question the possibility of capitalizing on such a communication strategy. Rare decisions show that judicial condemnation is not automatic. The criterion remains that of ambiguity regarding potential official sponsor status. Thus, the Court of Cassation did not condemn FIAT following an advertisement reproducing a simple sports result and the date of an upcoming match, associated with the congratulatory message "The Fiat 500 congratulates England on its victory and sets a date with the French team on March 9 for France-Italy" (Cass. Com, May 20, 2014, Case No. 13-12102, FFR / Fiat).

In conclusion, the case of ambush marketing during the Olympic Games highlights the importance of fairness that should govern all economic activity.

LEGIMARK, a firm of industrial property attorneys, is at your disposal to support you upstream of all commercial projects and communication campaigns, in order to assess and eliminate potential legal risks.