Ambush Marketing and the 2010 Vancouver-Whistler Olympic Games: A

Prospective View
Fogler Rubinoff LLP, Toronto
by Nancy A. Miller

Ambush Marketing and the 2010 Vancouver-Whistler Olympic Games:

Introduction – The Vancouver Perspective

The Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter
Games has broadly defined ambush marketing in the following terms:

(1)Only official sponsors, licensees and government partners of the Olympic Movement
in Canada are allowed to suggest an affiliation or connection with the Olympic
Movement or any Olympic Games. Unfortunately, those exclusive rights can be
infringed by “ambush marketing” – marketing that capitalizes on the goodwill of the
Movement by creating a false, unauthorized association with the Olympic Movement,
Olympic Games or Olympic athletes without making the financial investment required to
secure official sponsorship rights.

(1) There is no unanimity of view that the practice of ambush marketing is an unfair and
unethical marketing tactic rather than a creative, effective and legal marketing practice.

(2) However, this article will not examine this question but rather will focus on the
anticipated effectiveness of the legislative effort to protect official corporate sponsors of
the Olympic Games from the threat of ambush marketing. This threat has been
described in stark terms by The Vancouver Organizing Committee for the 2010 Olympic
and Paralympic Winter Games as follows:

The Olympic Brand is a key part of VANOC’s sponsorship and licensing programs,
because only official sponsors, licensees and government partners of the Olympic
Movement in Canada are allowed to use the Olympic Brand in Canada. Unauthorized use
of the Olympic Brand threatens to undermine VANOC’s sponsorship and licensing
programs and VANOC’s ability to raise the funds necessary to host and stage the 2010
Winter Games, because Olympic sponsors and licensees will not make significant
financial investments to use the Olympic Brand if their competitors and others can do so
for free.
 This is important for all Canadians. Revenue from sponsors and licensees
is critical to the successful staging of the 2010 Winter Games, increasing
funding for Canadian athletes, and sport and cultural legacies for all
Canadians…
Ambush marketing can be intentional –a tactic used by unscrupulous
businesses to exploit the goodwill of the Olympic movement – or
inadvertent. Either way, ambush marketing is unfair and unethical because
ambush marketing allows the ambush marketer to benefit from an
association with the Olympic Movement without providing any financial
support for the Canadian Olympic Movement, 2010 Winter Games or
Canadian Olympic athletes.
Ambush marketing is a real threat to VANOC’s sponsorship and
licensing programs because it undermines the value of official sponsorship
and licensing rights and impairs VANOC’s ability to attract future
sponsorship and licensees. It also threatens the financial viability of future
Olympic Games by impairing the ability of Games organizers to raise
necessary sponsorship and licensing funding.
VANOC must protect the Olympic Brand against unauthorized use and
ambush marketing as part of its efforts to stage a well-organized and
financially successful 2010 Winter Games. VANOC has contractual
obligations to the International Olympic Committee to protect the
Olympic Brand against unauthorized use and to prevent ambush marketing
in Canada.

II. Methods of Ambush Marketing

Attempts by competitors of official sponsors to trade on the goodwill of the Olympic

Games by creating an association between the non-sponsor and the Olympic Games
without authorization from the host organization and without payment of any sponsorship
or licensing fees have historically been accomplished by several different non-sponsor
marketing strategies including sponsoring the television broadcast of the event,
sponsoring sub-categories within the event such as a federation, team or particular
athletes, purchasing advertising time on television before, during and after an event,
creating promotions that coincide with the event, purchasing advertising on billboards in
the vicinity of the cite, and handing out merchandise so that spectators effectively
become walking billboards for the non-sponsored competing brand at an event.

These marketing strategies are usually combined with the use of words or imagery that
will remind consumers of the Olympic Games. For example, prior to the commencement
of the 1994 Winter Olympic Games in Lillehammer, Norway, television advertisements
featuring Visa, an official sponsor, proclaimed that American Express cards were not
accepted in the Olympic Village. In response, American Express, a non-sponsor, aired its
owned television commercials in which it effectively and truthfully utilized a double
entendre stating that “If you are traveling to Lillehammer, you’ll need a passport, but you
don’t need a Visa”. The question that arises from this, and indeed other myriad examples
of ambush marketing surrounding the Olympic Games, is whether consumers mistakenly
believed that the non-sponsor, American Express in this case, was in fact a sponsor of the
Olympic Games or otherwise had some connection or affiliation with the Olympic
Games.

III. Ambush Marketing and Traditional Intellectual Property Remedies in Canada

– Passing Off

Instances of ambush marketing, unlike activities such as counterfeiting that involve the
unauthorized use of a registered trademark on merchandise, are rarely actionable or
amenable to the traditional intellectual property remedies of trademark infringement.
Ambush marketers do not use the trademarks of third parties but rather creatively allude
to a sporting event and use their own trademarks to suggest a connection or affiliation
with that sporting event.

It is thus not at all surprising that there are so few instances where Courts have had an
opportunity to deal directly with the issue of ambush marketing.

National Hockey League v. Pepsi-Cola Canada Ltd., infra, is the sole example where a
Canadian Court has addressed the issue.

An important source of revenue for the National Hockey League and its member clubs
comes from the sale of licenses that allow a licensee to display the league’s registered
trademarks on or in conjunction with the licensees products and to claim affiliation with
the league and its member clubs. The National Hockey League had awarded one such
license to Coca-Cola Ltd. which designated Coca-Cola Ltd. as an official sponsor of the
N.H.L. and allowed it to describe its Diet Coke product as “the official

Soft Drink of the N.H.L." The license also included a term that Coca-Cola Ltd. had the
right to use the symbols of the National Hockey League and its member clubs for its
promotional programs in Canada and the United States of America.

The license did not provide any right for Coca-Cola Ltd. to advertise in Canada during
the broadcast of any National Hockey League games. The broadcast rights in Canada had
been sold to Molson which in turn granted Pepsi-Cola Canada Ltd. the right to be the
exclusive advertiser of soft drinks during the broadcast of all Hockey Night in Canada
games.

The action concerned an advertising campaign by Pepsi-Cola Canada Ltd. in the spring of
1990 called the “Diet Pepsi $4,000,000 Pro Hockey Playoff Pool” and the promotional
material related to that contest. Pepsi-Cola Canada Ltd. advertised the contest on
television during the broadcast of the Stanley Cup playoff series. In order to participate in
the contest, bottle cap liners and specially marked cups included the statement “If
[followed by the name of a city or state that was home to an N.H.L. team] wins in
[followed by one of the numbers 4, 5, 6 or 7] games, you win” followed by a description
of prizes that could be won. Hang tags were placed over the necks on bottles of Pepsi-
Cola Canada Ltd.’s products. The front of the hang tags prominently displayed the name
of the contest. The contest was also widely publicized by other means.

The National Hockey League alleged that Pepsi-Cola Canada Ltd. was guilty of the tort
of passing off on the basis that the contest and particularly the television commercials
were likely to convey to the public a false impression that the National Hockey League
and its member clubs approved, authorized, endorsed or were in some manner associated
with the contest and consequently Pepsi-Cola’s products.Pepsi-Cola Canada Ltd.
acknowledged that the cities and states named on the bottle cap liners and cups were
intended to refer to the N.H.L. teams based in the named locations, that the words “Pro
Hockey Playoff” was a reference to the Stanley Cup playoffs, and that the numbers were
meant to refer to the number of games in the final series that were required by the named
team to win the Stanley Cup.

Pepsi-Cola Canada Ltd. conceded that the contest was designed to obtain commercial
advantage from the publicity that its products would receive during the playoffs but
denied that the contest was an attempt to pass off its products as being in any way
approved, authorized, or endorsed by or associated with the National Hockey League and
its member clubs. Rather, the contest was an aggressive but legitimate marketing
campaign.

The trial judge observed that the more common type of passing off occurs in
circumstances where it is alleged that a defendant has promoted its product or business in
such a way as to create the false impression that his product or business is in some way
approved, authorized or endorsed by the plaintiff or that there is some business
connection between the defendant and the plaintiff.

He concluded that there must be a representation that the defendant’s goods are
connected with the plaintiff in such a way as would lead people to accept them on the
faith of the plaintiff’s reputation.The question was whether the advertising went beyond
that which was legitimate and represented to the public that the National Hockey League
or any of its member clubs approved, authorized or endorsed the contest and thereby, by
implication, the products of Pepsi-Cola Canada Ltd., or that there was some business
connection between the National Hockey League and its member clubs and Pepsi-Cola
Canada Ltd.

In support of the allegation of passing off, the National Hockey League relied, in the
main, on the results of a survey that it had caused to be conducted soon after the end of
the 1990 hockey season on a single day at three shopping malls all within the Greater
Vancouver Regional District. However, the trial judge found the survey failed to meet the
test necessary to enable the results to be admitted in evidence on the basis that the wrong
universe and sample were selected for the survey. In particular, the universe and sample
selected was inappropriate because it was “consumers of soft drinks who had seen the ad
on television” rather than “Canadians who may have been exposed to the contest”.

The trial judge also acknowledged that the tribunal of fact must not only consider the
evidence but also use its own common sense when evaluating the likelihood of the public
being deceived or confused. The trial judge concluded that he was unable to say that the
contest suggested to his mind that the National Hockey League or its member clubs
approved, authorized or endorsed the contest in any way or that there was some form of
business connection between the National Hockey League, its member clubs and Pepsi-
Cola Canada Ltd. However, the trial judge attached little weight to his own common
sense because he acknowledged that his own perception may very well have been
influenced by the trial itself.

It is without doubt that the admissibility of the survey was key to the success of the action
and that the passing off action failed because the National Hockey League could not
establish, without the admission of the survey, the requisite elements of the cause of
action of passing off.

One commentator has opined that the case: does send a clear message to those wanting to
undertake tactics similar to those used by Pepsi. As Davis notes, the case also
demonstrates just how reluctant the courts can be to find a violation of existing law
unless there has been a clear “trademark and trade name” infringement and this
infringement is part of the overall marketing campaign.

Another commentator has stated:

NHL v. Pepsi made it clear that, however the rest of the world chose to handle the
problem of ambush marketing, “pure” ambush marketing such as was involved in
this case-involving no trademark infringement or other legal violations-was an
acceptable practice in Canada.

Considerable caution should be exercised in concluding that any such messages have
been delivered as to the acceptance of the practice of pure ambush marketing in Canada.

Rather, the case should be regarded as a cautionary tale with respect to the critical
importance of properly designed surveys in trademark cases. It would be unwise to
extrapolate from the limited “common sense” observations of the trial judge, to which he
himself gave little weight that the practice of pure ambush marketing in Canada will
inevitably survive an allegation of passing off in circumstances where admissible survey
evidence could be considered. Indeed, commentators have relied significantly on surveys
which have revealed some considerable confusion with respect to the public perception of
the identity of the major official sponsors of the Olympic Games and other major sporting
events as evidence of the effectiveness of pure ambush marketing.

 
IV. Olympics Specific Legislation – Australia

The Sydney 2000 Games (Indicia and Images) Protection Act 1996, now repealed, was
enacted to put in place legal protection for official corporate sponsors of the Sydney 2000
Summer Olympic Games from ambush marketing. The legislation was designed to
protect indicia of the Sydney Games including “Sydney 2000 Games images" defined as
any visual or aural representations that to a reasonable person, in the circumstances of the
presentation, would suggest a connection with the Sydney 2000 Olympic Games and the
Sydney 2000 Paralympic Games. The unlicensed use of the indicia and images for
commercial purposes applied to goods and services in such a way that to a reasonable
person would suggest that the party was a sponsor or provider of other support for the
Sydney 2000 Olympic Games and the Sydney 2000 Paralympic Games was prohibited.

The authors of Ambush Marketing and the Sydney 2000 Games (Indicia and Images)
Protection Act: A Retrospective has argued that the Act largely failed to achieve its
purpose largely on the basis that “advertising which some official sponsors might classify
as ambush marketing was not prevented”. The author’s state:

If one overall conclusion is to be drawn from the experience of the Sydney 2000
Act, it is that the reality of ambush marketing is such that laws alone may well
prove inadequate for responding to ingenious marketing strategies.…
What this paper has highlighted, however, is that something in addition to the
type of legal solutions contained in the Sydney 2000 Act must be given serious
consideration and much more discussion. The law as it stands now seems unable
to accommodate the concerns of official corporate sponsors. There is no limit to
human ingenuity. As such, ambush marketing at the margins will arguably always
occur…
The Sydney 2000 Act, aimed as it was at rectifying those situations of most
concern to official corporate sponsors, did not achieve that which it proponents
had hoped for. As such, it does not stand out as an acceptable alternative for those
charged with organizing future events and raises the question as to whether more
can be done to ensure better protections.

The opinion of the authors as to the general ineffectiveness of legislation aimed at

curbing pure ambush marketing may well be correct but it must be acknowledged that the
analysis was based upon a dearth of any jurisprudence. Ansett, an official sponsor of the
2000 Sydney Olympic Games did commence proceedings in the Federal Court prior to
the commencement of the Olympic Games for an injunction to prevent Qantas from
engaging in ambush marketing but the proceeding was settled after several hearing days
without any decision from the Court. Qantas had run a full page advertisement with the
title “Australia Wide Olympic* Sale” The asterisk referenced a statement in small type
that Qantas was not an Olympic sponsor. The authors opine that if Ansett could not
successfully prosecute an action in these circumstances that it was unlikely that ambush
marketing could be prevented under the Act or any other Act with a similar objective,
stating:-
Given the results in the Qantas case outlined above, it is arguable that court cases would
not have proven successful. Indeed, in light of the result in the case against Qantas and
the sparse reporting of any other cases, it appears that unless there is an explicit breach of
the Olympic Insignia Act or the defined expressions sections of the Sydney 2000 Act, it
will be difficult to argue that there has been an infringement or that the advertising is in
any sense unlawful…The Qantas advertisements, for example, did not feature the
Olympic motto, the Olympic symbol, he other Olympic designs or the torch and flame.
Similarly, they did not use any of the Sydney 2000 Games indicia. Arguably there may
have been a breach of Section 12 (1) of the Sydney 2000 Act, which prohibits the use of
Sydney 2000 games images for commercial purposes. However, as this paper has
revealed, it is unlikely that the courts will see this type of visual representation as a
marketing tactic which, to the reasonable person in the circumstances of the presentation,
suggests a connection with the Sydney 2000 Olympic Games.

Again, without challenging the authors’ views that legislation aimed at curbing pure
ambush marketing is largely ineffective, it must be accepted that the conclusions are
based broadly on conjecture. One is left to speculate as to the varied reasons why the
legal response of the official sponsors to ambush marketing activities during the Sydney
2000 Olympic Games was not as aggressive as the ambush marketing activities
themselves.

In the absence of any meaningful jurisprudence as to the interpretation of The Sydney

2000 Games (Indicia and Images) Protection Act 1996, the experience of both the Sydney
Games as well as the decision in National Hockey League v. Pepsi-Cola Canada Ltd,
infra, offer limited insight with respect to whether similar legislation will effectively
address the concerns of The Vancouver Organizing Committee for the 2010 Olympic and
Paralympic Winter Games as they pertain to pure ambush marketing.

V. Olympics Specific Legislation – Canada

In anticipation of the 2010 Vancouver-Whistler Olympic Games and with the objective of
ensuring the protection of trademarks related to the Olympic Games and protecting
against certain misleading business associations, the government of Canada has
introduced Bill C-47, which is to be known as the Olympic and Paralympic Marks Act.
The Bill was given first reading in the Senate on June 14, 2007. The question which this
article will address is whether this legislative response might effectively achieve the
purpose of ameliorating the concerns expressed by VANOC.

Section 3(1) of Bill C-47 provides that no person shall adopt or use in connection with a
business, as a trade-mark or otherwise, an Olympic or Paralympic mark or a mark that so
nearly resembles an Olympic or Paralympic mark as to be likely to be mistaken for it.
Olympic and Paralympic marks include the marks that are set out in Schedules 1 and 2 of
Bill C-47 and include the words and phrases in Schedule 1, such as Canadian Olympic
Committee, Canadian Paralympic Committee, Faster, Higher, Stronger, International
Olympic Committee, International Paralympic Committee, Olympia, Olympiad,
Olympian, Olympic, Olympic Games, Olympics, Paralympian, Paralympic, Paralympic
Games, Paralympics, Spirit in Motion and the words and phrases in Schedule 2 such as
Canada 2010, Canada’s Games, COVAN, Games City, Sea to Sky Games, Vancouver
2010, Vancouver Games, Vancouver Organizing Committee for the 2010 Olympic and
Paralympic Winter Games, VANOC, Whistler 2010, and Whistler Games.

The marks set out in Column 1 of Schedule 2 will be considered not to be an Olympic or
Paralympic mark after December 31, 2010.

The words and expressions used in Bill C-47 shall, unless the context otherwise requires,
have the same meaning as in the Trade-Marks Act. Section 3 (1) of Bill C-47 is similar to
section 9 of the Trade-Marks Act which provides that no person shall adopt in connection
with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly
resembling as to be likely to be mistaken for an official mark.

The test to be applied under section 9(1) of the Trade-Marks Act is whether or not the
mark consists of, or so nearly resembles as to be likely to be mistaken for, the official
mark. In other words, is the mark identical to, or almost the same as, the official mark.

In Big Sisters Assn. Of Ontario v. Big Brothers of Canada, supra, Mr. Justice Gibson
rejected the argument that the test is one of "straight comparison" but, rather concluded
that the test is one of resemblance, stating:

Clearly, the Defendant's mark is not identical to the marks of BSAO. The issue then is
whether or not the Defendant's mark is almost the same as, or substantially similar to
any or all of BSAO's marks.

It has been contended that the words "consists of" are not equivalent to "identical to" but
the Federal Court of Canada held otherwise in Canadian Council of Professional
Engineers v. APA-The Engineered Wood Assn., infra. Mr. Justice O'Keefe held that the
words "consisting of" in s. 9 of the Trade-Marks Act are to be interpreted to mean
"identical to"and do not mean "including".

Even in circumstances where there is a "fairly high degree of resemblance" between the
two marks that will not be determinative. The section has historically been strictly
construed and it is only the most careless of ambush marketers that will run afoul of
section 3(1) of Bill C-47.

Section 4(1) of Bill C-47 provides that no person shall, during any period prescribed by
regulation, in association with a trade-mark or other mark, promote or otherwise direct
public attention to their business, wares or services in a manner that misleads or is likely
to mislead the public into believing that (a) the person’s business, wares or services are
approved, authorized or endorsed by an organizing committee, the Canadian Olympic
Committee or the Canadian Paralympic Committee; or (b) a business association exists
between the person’s business and the Olympic Games, the Paralympic Games, an
organizing Committee, the Canadian Olympic Committee or the Canadian Paralympic
Committee.

Section 4(1) closely mirrors the traditional intellectual property remedy of passing off
that was considered by the Courts in British Columbia in National Hockey League v.
Pepsi-Cola Ltd., supra. In determining whether a person has acted contrary to subsection
(1), the court shall take into account any evidence that the person has used, in any
language, (a) a combination of expressions set out in Part 1 of Schedule 3; or (b) the
combination of an expression set out in Part I of Schedule 3 with an expression set out in
Part 2 of that schedule. The expressions set out in Schedule 3 to Bill C-47 include Games,
2010, Twenty-ten, 21st, Twenty-first, XXI, 10th, Tenth, Xth, and Medals. The expressions
set out in Part II of Schedule III include winter, Gold, Silver, Bronze, Sponsor,
Vancouver, and Whistler.

Interestingly, the Bill does not contemplate the absolute prohibition of the use in
advertising of any of these expressions alone and indeed even the combination of any of
the expressions. Rather, the Courts will simply be required to take such evidence into
account in determining whether a person has acted contrary to section 4 (1). As with the
prohibition contained in section 3(1) of Bill C-47, it is likely that only the most careless
of ambush marketers would design a marketing campaign that would utilize one of the
designated combinations of expressions set out in Schedule 3.

All of the words and expressions in Schedules 2 and 3 will be repealed as of December
31, 2010. 

If a court finds, on application, that an act has been done contrary to section 3 or 4, it may
make any order that it considers appropriate in the circumstances, including an order
providing for relief by way of injunction and recovery of damages or profits, for punitive
damages, for the publication of a corrective advertisement and for the destruction,
exportation or other disposition (a) of any offending goods, packages, labels and
advertising material; and (b) of any dies used to apply to those goods, packages, labels or
advertising a mark whose adoption or use is prohibited under section 3. The Act in this
regard mimics the remedies that are available to litigants in traditional intellectual
property cases. No remedy may be awarded in respect of an act contrary to section 3 or 4
that was committed more than three years before the commencement of an action under
subsection 5(1).

However, Bill C-47 does include one provision that could be of considerable assistance in
the context of an ambush marketing action commenced under section 4 (1) of Bill C-47.
Section 6 provides that if an interim or interlocutory injunction is sought in respect of an
act that is claimed to be contrary to section 3 or 4, an applicant is not required to prove
that it will suffer irreparable harm.

In recent years, the availability of interim and interlocutory injunctions in intellectual

property infringement cases has been severely circumscribed by the requirement to
demonstrate irreparable harm. It is quite likely that a traditional passing off action would
not be viewed by official sponsors who had been victims of ambush marketing as a
realistic option in the absence of this provision because of the view that the damage had
already been done. This provision may well facilitate the commencement of actions
pursuant to section 4(1).

VI. Additional Measures Available to Official Sponsors

A variety of additional measures have been utilized by the International Olympic

Committee, host cities and official sponsors to combat at least some the methods that
have been effectively used by ambush marketers in the past. In 1997, the International
Olympic Committee announced that any city bidding to host the Olympic Games in the
future must purchase all advertising space for use by official sponsors within the host city
for the entire month during which the Olympic Games are held.

Further, measures have been undertaken to impose restrictions on awarding tickets to

Olympic events in commercial promotions without authorization and to preventing the
products of competitors of official sponsors from being displayed or carried by spectators
at events. FIFA has been especially aggressive in pursuing such measures. Fans of the
Netherlands at the 2006 FIFA World Cup were required to disrobe their lleuwenhosen
before being allowed to enter the stadium. The pants had been provided to fans as part of
a commercial promotion and displayed the logo of a brewery that was not the World
Cup’s official beer sponsor.

Australia enacted the Olympic Arrangements Act prior to the Sydney 2000 Olympic
Games. The Act included provisions that prohibited the sale of any unauthorized
merchandising articles within a specified radius of an event location during the Olympic
Games and also prohibited skywriting or flying banners above event locations.
Commentators who argue that the legislative efforts of Australia to prevent ambush
marketing during the 2000 Sydney Olympic Games largely failed to achieve their
purpose concede that these provisions went further than ever before and were arguably
more successful than other host cities in controlling some aspects of ambush marketing.

 VII. Measures Available to Ambush Marketers to Avoid Lawsuits

Small and medium businesses cannot afford to pay the license fees that must be paid by
official sponsors. The ingenuity of ambush marketers in protecting themselves from
liability has been noted by virtually all commentators.

In the light of Bill C-47, ambush marketers may seek to ensure protection from liability
by including in all advertising materials an unambiguous disclaimer stating that they are
not affiliated with or endorsed by the International Olympic Committee, the Canadian
Olympic Committee or the Olympic Committee of the host city.

 In National Hockey League v. Pepsi-Cola Canada Ltd., the trial judge made only passing
reference in reaching his primary conclusion that the claim to passing off had not been
made out to the disclaimer that appeared in both the television advertisements and on all
the printed material associated with the contest but elaborated on the issue in obiter. The
trial judge acknowledged that the disclaimer that was displayed during the television
commercials left something to be desired because it was displayed for about seven
seconds and was against a background that made it difficult to read. However, the
disclaimer was displayed prominently in bold print on all printed materials relating to the
contest.

The prominence to be given to a disclaimer must depend on the likelihood of a false

impression being conveyed to the public if there is no disclaimer. There will undoubtedly
be some situations where no disclaimer will be adequate. On the facts of the case, the trial
judge observed that there was only a minimal likelihood that the television
advertisements would create a false impression in the minds of the public that the
National Hockey League endorsed the products of Pepsi-Cola Canada Ltd. He concluded
that had a disclaimer been necessary, it would have been sufficient to dispel any possible
misapprehension having regard to the fact that the disclaimer was produced very clearly
on the printed advertising materials for the contest.
ADVANTAGE OF AMBUSH MARKETING-:

Some of the commonly used ambush marketing strategies include:

1) Sponsoring live and/or recorded radio/TV transmissions of the event

and acquiring advertisement spots during the transmission.
2) Sponsoring a sub category with in an event
3) Advertising using the event schedule
4) Using strategically placed spectators at key camera points in venues
to be picked up by the camera for unauthorized media exposure
5) Placing advertisements around the city and /or nearby the venues or
stadium which include images of the sport, venue and/or event
which is about to take place or actually happening.
6) Placing stands, flags, promotional personnel, etc.
7) Distributing free give a ways in the venues and stadiums as caps,
flags, etc.
8) Promotions with tickets to the event or travel package at the time of
the event.
9) Greetings or contributions to sportsmen or teams which are
sponsored by competitors
10) Advertising or placing hot air balloons above the open venues
 Misleading the public about sponsorship status

Impediment of the competitors marketing efforts

Unfair exploitation of competitors marketing efforts

Intrusion ambush marketing-:

1) During the 1984 Olympics, Nike built large walls close to Los Angeles
Coliseum and displayed its logos on several clothes worn by the
athletes, despite the fact that converse was the official sponsor of the
event.

2) Linford Christie the winner of the 100 meter race in Atlanta Olympics
(1996) appeared at a press meet wearing contact lenses having the logo of
puma, wherein Reebok was actually the official sponsor for the event. In
the same event, Nike was also found to give handouts, paper flags with its
company logo at the venues entrance. 3)Linford Christie, the winner of the 100 meter
race is Atlanta Olympics (1996) appeared at a press meet wearing contact lenses having the logo
of puma, wherein Reebok was actually the official sponsor for The event ,Nike was also found to
give handouts ,paper flags with its company logo at the venue entrance.

4) Tit for Tat kind of response was found between Pepsi &Coca cola in ambushing marketing
during two events sponsored by the companies. During the coca cola cup final at sharjah,Pepsi
flew hot air balloons having the company’s logo and during the Pepsi 400 at Dayton speedway
Coca-Cola placed banners and stands everywhere outside the venue and sponsored eight cars.

Through these kind of intrusion activities, non- Sponsors and ambushers are able to gain
because they advertise their goods and services to massive audiences, potentially attacking new
markets of commercial segments.

WARDING OFF AMBUSH MARKETERS

 1) Repeatedly and publicly identifying the sponsors of the event.
2) The guidelines of event regulations and the event regulations and the participation
agreements should govern what the sports person or the team wears of carries.
3) Additional sponsorship contracts shall be signed to protect exclusive rights from all
major stake holder like players and\ or teams,event organizers and broadcasters.
4) Broadcast licensing agreements need to be negotiated by the event organizers.
5) Local billboard spaces can be bought by the event organizers or sponsors to keep the
venue surrounding free from ambush marketing.
6) Use of photographic images and selling that image to non sponsors for promotional
purpose shall be controlled.
7) Manufacturing and distributing of licensed merchandise shall be controlled by reserving
the sales in the special retail outlets.
8) Sponsors and organizers should register all trademarks, carefully controal their
licensing , be vigilant about infringements and enforce their rights in the courts.

VIII. Conclusion

It is difficult to offer any definitive opinion as to whether Bill C-47 has successfully
supplemented existing intellectual property rights given the dearth of jurisprudence both
with respect to the efficacy of applying existing intellectual property rights in the context
of ambush marketing, and with respect to the use of legislation in Olympic specific
contexts. It may be asserted that Bill C-47 would not be regarded as a significant advance
in the legal strategies available to address the harms allegedly caused by ambush
marketing because its provisions so clearly mirror those of existing intellectual property
rights but for the inclusion of the provision providing that in the plaintiff need not
establish proof of irreparable harm in the context of applications for interim or
interlocutory injunctions brought in actions pursuant to sections 3 and 4 of Bill C-47. The
potential impact of this provision should not be understated for it is this single provision
that may embolden official sponsors to commence actions against ambush marketers and
to obtain meaningful relief at the outset of a harmful ambush marketing campaign.
  Vancouver 2010 – The Importance of Protecting the Olympic
Brand http://www.imakenews.com/eletra/gow.cfm?z=iln
%2C197649%2C0%2C1633570%2Cb11
 Edward Vasallo, Kristin Blemester and Patricia Wenner, An
International Look at Ambush Marketing 2005 The Trademark
Reporter, Volume 95 at page 1355

 Vancouver 2010 – The Importance of Protecting the Olympic

Brand.

 Jeremy Curthoys and Christopher W. Kendall Ambush Marketing

and the Sydney 2000 Games (Indicia and Images) Protection
Act: A Retrospective at paragraphs 14-15

 Ambush Marketing and the Sydney 2000 Games…at paragraph

15,43,47,75, 78 and 79

 An International Look at Ambush Marketing at page 1339-1340

1341

 National Hockey League v. Pepsi-Cola Ltd. 1992 CanLII 2324

(B.C.S.C.); affirmed 1995 CanLII 2102 (B.C.C.A.)

 I992 CanLII 2324 at page 3

 1995 CanLII 2102 (B.C.C.A.) at pages 6 and 8

 An International Look at Ambush Marketing at pages

1340,1346,1350-1351 and1353

 Bill C-47 Statutes of Canada 2007 Chapter 25

 Trade-Marks Act, section 9 (1)

 Big Sisters Assn. of Ontario v. Big Brothers of Canada (1997), 75

C.P.R. (3d) 177 at pages 217-220 (F.C.T.D.); affirmed (1999),
86 C.P.R. (3d) 504 (F.C.A.)

 Trade-Marks Act, section 53

ADVERTISING & MARKETING BULLETIN

August 2007
Ambush Marketing and “The Olympic and Paralympic Marks Act”: What this means for
businesses and Olympic marketing
Ambush Marketing: Protecting Official Sponsorship at the 2010 Vancouver Olympic
Games
Sponsoring major sports or cultural events is a standard technique used by many
businesses to associate themselves with the goodwill, reputation or popularity generated
by these events. The cost can be high, particularly if it is a high-profile event such as the
Super Bowl or the World Cup. However, the perceived sales payoff of being associated
with such an event makes it worthwhile for many companies.
Many interesting legal and ethical questions arise when companies attempt to become
linked with these events without paying for the right to do so. How are official sponsors
protected from these practices, and how can event organizers protect the sponsorship
value of their events?
Ambush Marketing
“Ambush Marketing” is the term given to actions by third parties that attempt to
capitalize on the value and goodwill associated with a major event to the detriment of
official sponsors. It generally involves an unauthorized association of a business with the
marketing of an event. This comes at a cost to an organization or business that has paid
for the right to associate itself with the event. Successful ambush marketing induces the
public into believing that a company (or its product/service) has arranged for official
endorsement.
It is sometimes derisively referred to as ‘parasitic marketing,’ and it is a serious issue for
any particular event that relies on outside sponsorship as a source of funding. If ambush
marketing is successful and goes unpunished, official sponsors might ask themselves
what commercial value is gained by their ‘official’ sponsorship of an event.
The Olympic Games and the IOC
The Olympic Games have often been a target for ambush marketing practices. As one of
the most well-known sporting events in the world, it has enormous marketing value.
Consumer research studies have shown that the brand awareness of the Olympic Rings as
a symbol of the Olympic Games is at levels above 90%.
Accordingly, there has been a great deal of pressure on host country governments from
the International Olympic Committee (“IOC”) for the creation of legislation and
regulations that effectively deter ambush marketing. The central difficulty is that many of
these practices are outside of traditional intellectual property laws and exist in a grey area
that is difficult to police or regulate. When there is no actual use of protected trademarks
or copyrighted logos, it makes it more difficult to punish ambush marketing under
existing laws.
One solution is the introduction of specific legislation to address ambush marketing and
the protection of Olympic marks. Australia did this for the 2000 Sydney Games (with
mixed success), and the UK has introduced similar legislation for the 2012 London
Games.
The Vancouver Games and “The Olympic and Paralympics Marks Act”
With the 2010 Vancouver Olympic Games (the “Games”) quickly approaching, in March
of 2007 the Canadian government introduced Bill C-47 The Olympic and Paralympic
Marks Act (the “Act”). On June 22, 2007, it received Royal Assent and is coming into
effect at a later date. The Act addresses Olympic mark protection and ambush marketing
challenges, as promised by the Canadian government when bidding for the Games in
2003.
In addition to amending the Trade-Marks Act (Canada) to include certain Olympic
trademarks and trade names, the Act is intended to add further protection to Olympic
marks and the official sponsors of the Games. One of the Act’s central focuses is the
prevention of ambush marketing. Section 4(1) addresses intentional efforts to weaken
official sponsorship rights through promotions or advertising that trades off the event’s
goodwill while seeking to confuse the buying public.
Schedule 3 provides a list of expressions that will prove to be a determinative factor as to
whether or not ones actions are considered ambush marketing. The words are mainly
generic terms such as ‘Games,’ ‘2010,’ ‘Winter,’ ‘Gold’ and ‘XXIst’ which normally
could not be registered or protected under the Trade-Marks Act due to their general,
unspecific nature. However, under the new Act, the courts are required to consider these
phrases and their use to determine whether or not a company has engaged in ambush
marketing. It is important to note that schedules 2 and 3 contain a so-called “sunset
clause” and will expire at the end of 2010.
Finally, in section 6 of the Act, the civil requirement for an applicant to show irreparable
harm when seeking an interlocutory injunction against an offending company is removed.
This significantly lowers the threshold for the Vancouver Organizing Committee
(“VANOC”), or an official sponsor to seek an injunction against an offending third party.
Essentially, if anyone is using any of the words from Schedule 3 in conjunction with
promotional activity that could imply a business association with the Games, VANOC can
apply for an immediate injunction against this person or business in order to stop their
activity.

Effectiveness of the Act

The legislation is quite comprehensive and some have criticized it for providing an
excessive level of protection for corporate sponsors. It does not leave much room for
third parties to manoeuvre with respect to the unauthorized use of Olympic marks but
may also capture conduct that is not ambush marketing but which fits under the ambit of
the Act. There have been previous cases where the IOC has tried to stop businesses that
have been in operation for years, from using a name or trade-mark that the IOC considers
confusing with the protected Olympic symbols. This was the case with “Olympia Pizza,”
a small family-run restaurant in Vancouver. The IOC sent a letter demanding that they
change their name and remove a sign which uses the Olympic rings as part of their logo.
The owners refused to co-operate and the resulting media coverageof the dispute
presented a “David and Goliath” characterization of events. This created negative public
opinion towards VANOC and their decision to fight an independently-owned pizzeria.
The dispute began before the Act was passed, and VANOC subsequently posted a policy
document regarding businesses that existed before 1998 that use “Olympic” symbols or
phrases. Essentially, it states that businesses are allowed to keep their name, but will be
required to remove any offending symbols or signage. It remains to be seen how VANOC
will approach such situations in the future given the negative public response to the
Olympia Pizza scenario.
Of course, even with the Act some companies may still find ways of getting around it.
Many companies have been succesefulin doing this in past.Lufthansa is a prime example.
By painting the “noses” of their aircraft to look like soccer balls during the World Cup in
2006, they managed to capitalize on the event without being an official sponsor.
However, the fear of negative publicity is making it less attractive to run an ambush
marketing campaign targeting the Olympics. A public relations battle with VANOC
and/or the IOC could be very costly, both financially and to one’s reputation. Imperial Oil
learned this lesson when running a contest during the 2006 Torino Games. The contest
did not use any Olympic symbols or make any reference to the Games, other then to offer
plane and hockey tickets to Italy to “Cheer on Canada.” It is worth noting that Imperial
Oil has been an official sponsor of Hockey Canada for more than twenty years now. It is
also worth noting that Petro-Canada is an official sponsor of the Olympic Games on a
national level. VANOC eventually persuaded Imperial Oil to withdraw the campaign and
remove what VANOC deemed an “unauthorized association” between Imperial Oil and
the Olympic Games. It seems as though VANOC plans on aggressively protecting the
Olympic marks and the official sponsors of the Games.es have been successful in doing
What Other Legal Options are Available?
There are a number of options that companies can pursue to protect themselves from
ambush marketing. The use of contracts can be an effective tool; for example, a provision
in a sponsorship agreement could require all billboards within a certain radius of the
event to be rented, and therefore controlled, by the organizers of the event. Another
helpful contractual provision would require the venue to restrict access to rival
companies. These are just a few examples; there are a variety of options that are available
to help prevent unauthorized associations by third parties. The key is that companies and
event organizers recognize the mutually beneficial value of corporate sponsorship, and
that they work together to effectively limit opportunities for ambush marketing. The
Vancouver Olympics are already proving to be an interesting case study in this area. It
will be very instructive to see what tactics are used, and the effectiveness of the new
legislation in stopping them. this in the past.

Ambush Marketing
How can official sponsors of sporting events prevent competitors from using the
event for marketing purposes?
Views from the United States, the United Kingdom and Germany.
By Boris Uphoff, Larry Cohen, Sarah Brown, Rohan Massey,Thies Bösling

What is Ambush Marketing?

As the costs of becoming an official sponsor of a major sporting event have mushroomed
over recent years, sponsors increasingly have to deal with what has become known as
ambush marketing. Ambush marketing occurs when a brand tries to exploit the media
attention of a major sporting event by connecting itself with the event without being an
official sponsor, in other words, without paying a sponsorship fee.
Ambush marketing is undeniably effective, and some marketing professionals even praise
it as the boldest and most creative form of advertising ever. On the other hand, ambush
marketing substantially undermines an event’s integrity as well as its ability to attract
future sponsors. Thus, some argue, it threatens to erode the fundamental revenue base of
mega-sporting events such as the Soccer World Cup, Formula 1 Racing or the Olympic
Games. Whichever standpoint one may take, the prevalence of ambush marketing raises
the question of what legal options are available to organizers and official sponsors of
such events to prevent ambushers from “hitching a free ride” without making any
financial contribution. For example, how can Adidas, who is an official sponsor of the
upcoming 2006 Soccer World Cup, prevent Nike, who is not, from advertising soccer
shoes in front of a stadium?
Legal Options
To Combat Ambush Marketing
Neither Germany nor the United States nor the United Kingdom has any specific law or
statute that explicitly addresses the issue of ambush marketing. Sponsors and organizers
of major sporting events must therefore rely on the more general provisions of trademark
and unfair competition law, contracts and on their rights as lessees of the respective
sporting venues in order to protect the exclusivity of official sponsoring.
Trademark Law
Under German law, if an ambush marketing campaign includes the unauthorized use of
any words, symbols, logos or slogans that are similar to or identical with protected
trademarks, the mark-owner may ban such use under section 14 of theTrademark Code
(MarkenG) and seek injunctive relief to end the ambush campaign immediately. He may
also sue for damages under the same provision. The UK Position is broadly similar to that
in Germany.It is an infringement of a registered trademark for a party without the
permission of the trademark owner to apply the trademark to any goods or services. It is
also common law passing off to misrepresent the origin of goods and services.Under UK
statutory law, it is not an infringement of any third party registered trademark right for a
proprietor or licensee of a registered third party trademark to use that trademark in its
proper context.
Similarly, in the United States, an event organizer who owns a federal, state or common
law trademark can seek an injunction under the Lanham (Trademark) Act, state law or
common law against the unauthorized use of the trademark or a colourable imitation. To
prevail, the trademark owner must demonstrate a likelihood of confusion – for example,
that consumers would likely believe the infringer was affiliated with or a sponsor of the
event. However, many ambush marketers are savvy enough to avoid infringement. In
order to prevent ambushers from passing off their products as official World Cup 2006
merchandise, Soccer’s world governing body FIFA has registered numerous World Cup-
related trademarks for a whole variety of goods and services. However, there is some
argument between courts and legal scholars if and to what extent terms such as “Soccer
World Cup” or “Germany 2006” are at all protectable as trademarks, or whether they are
generic. In June 2005, the German Patent and Trademark Office refused to register a
number of World Cup-related trademarks, holding that theywere generic, but on appeal,
the Federal Patent Court overruled the decision if not for all but for many claimed goods
and services. The case is now pending at the Federal Court of Justice, and a final
resolution of this dispute is not expected before the end of the World Cup. In another
case, the Office of Harmonization for the Internal Market (OHIM) recently refused to
delete some of FIFA’s Word Cup-related Community Trademarks, holding that they were
not generic terms.Moreover, unlike the International Olympic Committee (IOC) in 2003,
FIFA has no hopes for the German legislature to step in. While in the course of
Germany’s bid to host the
2012 summer Olympics, the German Federal Parliament passed a statute to protect
expressions such as “olympic” or“Olympic Games” – being of the opinion that they were
in fact generic terms not protectable under trademark law – there are no plans for passing
a similar statute with respect to the soccer World Cup.

In the UK the most foreseeable problems will involve the London 2012 Olympics. There
is a fundamental tension between English and European law on one hand relating to
freedom of speech and advertising and the requirements of the International Olympic
Committee (IOC) to protect sponsorship to make the Olympics a financial success. It is
ironic that when the Olympics were revived in the 1890’s they were revived as games for
athletic prowess and not as a commercial money making event. It appears that these days
the IOC can dictate requirements to the Government of the host city and acceptance of
the requirements is a criteria for IOC host city selection.
To appease the IOC, the UK Government has proposed a London Olympics Bill which
includes anti-ambush marketing provisions, although it does not cover the Olympic
symbol itself, which is already protected under the UK Trade Marks Act 1994. The bill
will establish the Olympic Delivery Authority which will have the authority to make
arrangements in respect of the London Olympics and enable regulations to be made about
advertising in the vicinity of London Olympic events.
Those regulations will allow the Olympic Delivery Authority to control all advertising
and sale of goods which might geographically or by the way they are advertised be
associated or imply an association with the Olympic Games. The bill does not provide
details of how wide any marketing “exclusion zone” around the Olympic venues will be.
It does, however, make clear that any unauthorized advertising within the exclusion zone,
whether printed word, sound or light media, whether commercial or non-commercial,
could result in a fine of up to £20,000 (approximately US$37,700).
There are exceptions for honest use of a registered trade mark and where the use of the
mark or sign is necessary in context (e.g. gold chain; silver polisher). Otherwise the
proposed bill outlaws any commercial association with the Olympic Games, which goes
far beyond ambush marketing.Any unauthorized trader seeking to profit from the
Olympics may face various penalties, including possiblecriminal prosecution. Whether
the wheels of justice will move quickly enough to be effective is debatable, especially as
the Olympics will only last two weeks. But the methodology is clear: ban everything
which is unauthorised and which couldbe commercially associated with the Olympics,
including the contiguous words “summer” and “games” in the UK.The proposed
legislation is so draconian that the use of “The London Olympics 2012” as a subtitle in
2012 to showcase this firm’s legal ability might result in a criminal prosecution. Whether
the bill, which protects private interests,will survive parliament, the Human Rights Act
and the free movement of goods and services provisions of the EU Treaty will be an
interesting debate.
The U.S. Olympic Committee (USOC) also has weapons against ambush marketing that
it uses aggressively. It is particularly important to the USOC to ward off ambushers and
maintain the value of sponsorships, because the sponsorships fund U.S. participation in
the Olympic games. Recognizing this, Congress in 1978 passed the Olympic and
Amateur Sports Act (OASA) (amended in 1998) to give the USOC the exclusive right to
control the use of various Olympic symbols, including the interlocking-ring logo and the
word “Olympic”.The USOC need not prove that a use would cause consumer confusion,
and there is no “fair use” defense, although free speech considerations come into play.
However, the OASA cannot be used to prevent ambush techniques that do not employ
protected Olympic symbols.
Unfair Competition Law
In Germany, some ambush marketing practices may also be actionable under the Unfair
Competition Code (UWG), under which a claimant may enjoin competitors from
engaging in “unfair competition” practices. The UWG provides no clear rule as to which
practices are “unfair” and which are legitimate. However, German courts agree that
unfair competition lies where a company engages in misleading or deceptive advertising.
Such deceptive advertising may be present where a company, by choosing a specific form
or venue for its promotional activities, raises the impression of being the official sponsor
of a sporting event when it is actually not.However, no case law has been published so far
which explicitly addresses the issue of whether and which ambush marketing practices
are permissible under the UWG.
In the United States, the Lanham Act provides a cause of action for false advertising, if
the event organizer can point to a false or misleading statement or implied statement by
theambusher. The organizer must also show that it was damaged by the statement. Courts
generally also require a plaintiff to show that consumers are likely to be misled and that
the false or misleading statement would be material to the consumers’purchasing
decisions. If the nature of an advertisement would lead a reasonable consumer to believe
that an ambusher is an event sponsor when it is not, and sponsorship would matter to the
consumer, a claim might lie, although it could be difficult and expensive to prevail. In
addition, virtually every state has a statute governing unfair trade practices, although
what isconsidered unfair differs.
Contracts
Arguably the most effective means for organizers of sporting events to block out
unauthorized advertising is to negotiate deals with the stadium owners (which may be, for
example, cities, sports clubs or operating companies) that allow the organizer to fully
control advertising on the premises. For example, the organizer may demand the stadium
to be handed over “clean site,” that is, cleared of all advertising by companies that are not
official sponsors. The organizer may also demand to rename the stadium for the time of
the event, and control access to the stadium grounds including the airspace above the
premises. By means of cannily designing the general terms and conditions of ticket sales,
organizers may even impose “dress-codes” on the spectators, leaving out those wearing
shirts or caps which blatantly display the logos of nonsponsors. In order to create ad-free
“special zones” beyond the boundaries of the stadium grounds, the FIFA has even
engaged the German government to pass anti-advertising ordinances for the areas
surrounding the World Cup 2006 venues and for the main access roads. The UK
proposed position for the 2012 Olympic Games is similar. One popular ambush technique
in the United States is to promote a sweepstakes in which event tickets are a prize. To
prevent this, the National Collegiate Athletic Association (NCAA) issues tickets to its
annual basketball tournament games as revocable licenses. Under the terms printed on the
back, the ticket may be revoked if it is used as a sweepstakes prize without the NCAA’s
permission. The NCAA brought state law breach of contract and unfair competition
claims against a company that nonetheless gave away the tickets as part of a promotion,
but the parties settled before the merits of this approach could be determined.
Conclusion
As ambush marketers become more creative in their efforts, event organizers will have to
use their own creativity to deviselegal means to protect the value of official sponsorships.

A Lesson in Ambush Marketing

One of the ongoing marketing challenges most sports organizations face is
ambush marketing. In the simplest terms: ambush marketing occurs when a
brand pays to become the official sponsor of an event and another brand tries to
connect itself to the same event, without paying the sponsorship fee and without
breaking any laws. It’s coming as close as you can to that mythical line in the sand
without actually crossing over that line. The key is don’t cross over that line and
be careful that the product and/or company you’re involved with doesn’t get
singed by the ensuing fire. The latest example of a company playing with ‘fire’;
AT&T who Sunday was served with a lawsuit on behalf of NASCAR. NASCAR a
sports property driven by their successful ability to meld sports sponsorship are
suing AT&T for $100 million accusing the wireless provider of interfering with its
exclusive sponsorship agreement with rival wireless company Nextel.

NASCAR through the lawsuit intends to ban all telecommunications companies

other than Nextel -- out of its top series in 2008. Nextel is the title (lead) sponsor
for NASCAR’s premier racing series, The Nextel Cup. R.J. Reynolds through their
company Winston was the longtime lead sponsor for NASCAR’s lead series, The
Winston Cup. The Winston Cup ran for 31 years, ending at the end of the 2003
NASCAR racing season. Nextel stepped in signing a 10-year $700 million
contract.
The contract gave Nextel exclusivity in the telecommunications category, with
two notable exceptions. Cingular and Alltel were grandfathered into the sport
when Nextel entered in 2004. Both had sponsorship contracts with NASCAR
teams that preexisted NASCAR’s Nextel agreement. There are two sides to that
issue, Nextel was making a major (10-year’s $700 million) commitment to the
sport and needed to have their interests protected, but at the same time NASCAR
officials recognized sponsorship agreements that were in place before Nextel
expressed any interest in the opportunity. Included in the contract between
Nextel and NASCAR is an agreement that would forbid any NASCAR team from
signing a sponsorship agreement with any telecommunications company.
The issue that has become a legal minefield – the logos on Jeff Burton’s car and
his Richard Childress Racing team. Burton and Childress have a sponsorship
agreement with Cingular, which has since been purchased by AT&T. From
NASCAR’s perspective AT&T was never a part of the ‘grandfathering’ in of any
telecommunications companies. At the same time Jeff Burton and Richard
Childress Racing have a multi-million sponsorship agreement they believe needs
protecting.

On Friday May 18 U.S. District Court Senior Judge Marvin H. Shoob in Atlanta
granted AT&T Mobility a preliminary injunction that will allow the placement of
AT&T Wireless logos on the No. 31 Cingular Chevrolet owned by Richard
Childress and driven in NASCAR Nextel Cup racing by Jeff Burton. "I am just
really happy for AT&T that we are going to be able to re-brand our car to AT&T
and carry on," Childress said in a news conference that day "We want to get back
to really trying to win this championship. It is just a great day for RCR and
AT&T."

At the same time according to a report at NASCAR.com: AT&T wasted no time

following the ruling. John Burbank, AT&T vice president of marketing, told
reporters in a conference call that Burton's car was to be repainted in time for
next day's Nextel All-Star Challenge at Lowe's Motor Speedway in Concord, N.C.,
on May 19.

"We're not hurrying in any way, shape or form to in any way make a statement
about our relationship with NASCAR or Sprint Nextel,'' Burbank said. "This really
is the normal course of business.''

In his ruling, Shoob said, "The court concludes that the continued appearance of
the Cingular brand on the No. 31 car, unaccompanied by any indication that
Cingular now does business as AT&T, is likely to confuse NASCAR fans.''NASCAR
didn’t sit on the fence releasing the following statement after the Judge’s ruling:
"NASCAR is disappointed with today's ruling but will continue to provide a
sponsor friendly environment for the industry and its partners. NASCAR is
currently weighing any and all options for appeal of today's decision. Meanwhile,
NASCAR will continue to protect the industry from actions designed to interrupt
a business model which has been beneficial to all.
"It is important to understand that Sprint/Nextel is a cornerstone sponsor that
benefits the entire industry by way of its contribution to the championship points
fund, technology bringing fans closer to the sport, and its massive marketing and
advertising campaigns."

And choosing their words carefully a Sprint/Nextel official released the following
statement: "While we respect the court's decision, we disagree with this
preliminary ruling," said Dean Kessel, director of NASCAR Nextel Cup Series
marketing for Sprint/Nextel. "Sprint/Nextel has been committed to enhancing
the NASCAR fan experience in many ways, including increasing the point funds
payout and developing cutting-edge technology and services for the betterment of
the fans, the teams and the sport.
"All of this was possible through the exclusivity granted to us as the series
sponsor for the Nextel Cup, and that exclusivity from NASCAR also grants us
protection from other telecommunications competitors infringing on our
sponsorship rights. The merger that created the new AT&T means their brand
now represents a much broader and more comprehensive company than the
Cingular brand, which was allowed to retain its existing brand position with the
racing team. We will continue to follow the case closely."
Which led to the Sunday lawsuit. There have been plenty of examples of ambush
marketing in sports before the events that unfolded over the weekend and
Monday, many linked to the Olympic Games. The International Olympic
Committee protects the Olympic rings zealously, at each and every turn.
At the 1984 Olympics Kodak sponsors TV broadcasts of the games as well as the
US track team despite Fujifilm being the official sponsor.At the 1988 Summer
Olympics, Fujifilm sponsors the games despite Kodak being the official sponsor.

At the 1992 Summer Olympics in Barcelona, Nike sponsors press conferences

with the US basketball team despite Reebok being the official sponsor.
At the 1994 Winter Olympics, American Express sponsors the games despite Visa
being the official sponsor.
For the 1996 Cricket World Cup, Pepsi ran a series advertisements titled
"Nothing official about it" targeting the official sponsor Coca Cola.
At the 1998 World Cup, Nike sponsored a number of teams competing in the Cup
despite Adidas being the official sponsor.
At the 2000 Sydney Olympics, Qantas Airlines’ slogan "The Spirit of Australia"
sounds strikingly similar to the games’ slogan "Share the Spirit." despite Ansett
Air being the official sponsor.
At the 2002 Boston Marathon, as Adidas-sponsored runners come off the course
Nike are treated to spray-painted messages honoring the day of the race, but not
the race itself.
At the 2006 FIFA World Cup, fans of the Netherlands had to disrobe Bavaria
Brewery's leeuwenhosen because Budweiser was the official beer sponsor.

The IOC so strong protects their sponsorships and at the same time protecting
the number one rule relating to the Olympics and sponsorship (Olympic events
area must be free of any sponsorship areas) the IOC includes contractual
language in every Olympic bid agreement forbidding any commercial signage of
any kind within a cities geographical area during the 16 days of an Olympic
Games.

In Atlanta during the 1996 Olympic Games Nike purchased huge billboards in
and around the entire city, focusing on the major Olympic venues. To the
hundreds of thousands of visitors attending the Games and the thousands of
reporters covering the Games it would have been easy to assume Nike was a 1996
Olympic sponsor. And 1996 wasn’t the first time Nike came brazenly close to that
line in relationship to the Olympic Games.

Nike has long been considered the benchmark when formulating and
implementing successful ambush marketing strategies for the Olympic Games.
Nike has a history of ‘ambushing’ the Olympic Games since 1984. On each
occasion, Nike has successfully associated itself with the popularity of the event
and has liquidated its investment in ambush marketing activities via increased
sales. Nike ‘ambushed’ Reebok’s sponsorship of the 1996 Atlanta Olympics by
strategically blanketing the city’s billboards with its ‘swoosh’ symbol. Likewise,
Nike employed this tactic in ‘ambushing’ Converse’s sponsorship of the 1984 Los
Angeles Olympics. Reebok who had to deal with Nike’s ambushing efforts at the
1996 Games ended their $10 million annual commitment to the IOC following
the Atlanta Games.
According to NASCAR.com among the issues NASCAR raised in their lawsuit:
"Cingulars refusal to follow NASCAR rules and accept NASCARs denial of this
paint scheme, and the filing of this lawsuit, has undermined NASCARs authority
as the sanctioning body of stock car auto racing,'' said the suit.

Most notable among those "certain actions'' is that "NASCAR may exercise its
discretion not to offer NASCAR membership to Cingular or AT&T for the 2008
Nextel Cup Series season.''

In a related matter, and a classic example of throwing fuel onto the fire Monday,
Richard Childress Racing making the following announcement: AT&T has
exercised the option in its current contract with Richard Childress Racing (RCR)
by signing a contract extension that will ensure that the popular No. 31 AT&T
Chevrolet remains a competitor in the NASCAR Cup Series for years to come.

At the same time, Jeff Burton, driver of the No. 31 AT&T Chevrolet, has reached
agreement with RCR on a contract extension with the 10-time NASCAR
championship-winning organization.

“As long-time supporters of racing and its fans, we are very pleased to continue
our involvement with the sport as a team sponsor in the wireless category,” said
Dave Garver, executive director of high growth segments and sponsorships for
the wireless division at AT&T. “We’ve enjoyed our relationship with Jeff and
RCR, and look forward to continuing to work with them through many more
winning seasons.

“In the past decade, we’ve developed innovative ways to bring fans closer to
racing, with interactive content that can be accessed via their wireless handsets,
alerts sent directly to their phones and on-the-ground activities promoting
wireless services at and around racing events. We’re looking ahead, planning
even more engaging ways to bring the latest in wireless technology to fans.”

And here’s how Childress Racing sees the sponsorship. As they see it “AT&T, as
Cingular, has been the primary sponsor of RCR’s No. 31 team since 2002.” And as
NASCAR looks at the issue – AT&T hasn’t been the sponsor and it’s immaterial to
NASCAR’s position that Cingular was purchased by AT&T.

“AT&T has been an important part of RCR since 2002 so we’re very excited about
renewing our contract with them and continuing that great relationship,” said
Richard Childress, president and CEO of Richard Childress Racing. “AT&T has
been a tremendous supporter of RCR’s fans and racing fans throughout the sport
for more than a decade and I am eager to turn our full attention back to winning
a championship.

“Jeff has been an important piece of the puzzle since he arrived at RCR in 2004.
He’s helped our entire organization since that time and will continue in that role.
He’s a true professional, whether it’s with his crew or with sponsors, so we’re very
pleased to have him signed to a new long-term contract.”

Burton began driving for RCR in August 2004 and was named the driver of its
No. 31 team for the 2005 NASCAR Cup Series season. He has earned two
victories, four pole positions, 15 top-five and 33 top-10 finishes in 85 races
driving the No. 31 AT&T Chevrolet.

“I’m really excited about AT&T extending their involvement with RCR. They’ve
been a great company to work with,” said Burton. “They have great people and
great products. It’s a real honor to represent AT&T both on and off the track.”

“My enthusiasm about what we are doing at RCR is as high as it’s ever been. I’ve
never even considered doing something different. I’m glad we were able to re-
sign with AT&T so that Richard and I could get our deal done. It’s a real honor to
drive for Richard and I am looking forward to continue working with him over
the next few years.”

You can assume Monday’s announcement by Richard Childress wasn’t a

coincidence – once NASCAR filed its lawsuit Sunday, Richard Childress Racing
announced its agreement with AT&T.

How this is going to play itself out is anyone’s guess at this point but there are a
few major issues for all the parties involved to consider. History has shown if
NASCAR isn’t successful in protecting their agreement with Nextel, Nextel may
sue NASCAR to end their $70 million annual commitment. At the very least
Nextel officials will likely seek a dramatic reduction in their sponsorship fee. Its
in the best interests of AT&T they make life as difficult as they can for Nextel,
after all their competitors. Stay tuned – the NASCAR sponsorship games have
only begun.