There's been plenty of discussion about the Major Events Management Act (MEMA) and the steps being taken by organisers to limit so-called ambush marketing during the upcoming 'Big Rugby Event'. Some say the rules are too draconian and kowtow to the corporates, while others believe they're fair enough because they aim to protect the sizable investment of the Rugby World Cup's official sponsors. Urgent Courier's Mobile AdVert has already come under fire from OMANZ for a possible breach. And we've found a campaign on AA's Bookabach.co.nz that looks like it's in a very similar boat.
The website is using words that are protected under the specific Rugby World Cup order, namely ‘Rugby World Cup 2011’. And while there is a disclaimer at the bottom of the webpage, it doesn't really matter, because MEMA contains a section stating the courts may presume a ‘representation’ breaches the act, even if it is "qualified by words like 'unauthorised' or 'unofficial', or other words that are intended to defeat the purpose” of section 10 (the ‘ambush marketing by association’ infringement section). So it can be argued the disclaimer is intended to do just this and defeat the purpose of the Act.
Of course, only a court can decide whether the website actually breaches section 10 of MEMA. But it's no small thing to be implicated. If found guilty, there is a maximum fine of $150,000, although if common sense prevails, it will presumably be a case of removing the offending campaign, like the Mobile AdVert incident, rather than both parties having to go through the courts.
We're still waiting on a response from the Ministry of Economic Development and the Rugby World Cup 2011 and we've put calls in to the marketing department at AA Tourism, which bought a "significant stake" in Bookabach in 2007, so we'll update the story when they get back to us.
One interesting thing to note about MEMA is that advertising and brand agencies can also be liable if they created an ad that's in breach of section 10 and media that have received payment for the ad in question can also be liable.
Here's a good explanation of MEMA from AJ Park (which, slightly ironically, acts for the AA) that shows how businesses and marketers can avoid getting in hot water.
"AA Bookabach Ltd has no affiliation or association with Rugby World Cup Limited, Rugby New Zealand 2011 Limited or the International Rugby Board. Any reference to the name of the Rugby World Cup 2011 tournament is made solely in order to assist in servicing the needs of the independent traveller to Rugby World Cup 2011. Under no circumstances shall Rugby World Cup Limited, Rugby New Zealand Limited or the International Rugby Board have any liability whatsoever in connection with accommodation which is listed and/or booked via or through the website").
UPDATE: Peter Miles, chief executive of AA Bookabach, had this to say:
"The "Great Kiwi Distractions" was an in-house developed campaign aimed at encouraging RWC visitors to take side-trips and stay at a bach or holiday home (distinct from providing at-game accommodation, which isn't our market).
The advice we took from a government department at the time was that the site had been reviewed and was deemed acceptable.
We've pulled the campaign for now while we seek clarification on the matter. If the campaign needs modifying in any way we'll make these changes before re-launching it."
Ministry of Economic Development spokesman:
"MED have previously issued guidelines to businesses about making references to the Rugby World Cup, including the use of protected words and symbols. Bookabach is aware of these. We will apply the law sensibly during the RWC2011, bearing in mind the need to obtain the maximum benefits from the tournament for New Zealanders. While Bookabach’s website does potentially breach the Major Events Management Act, at this point we are simply keeping a close eye on it, and have not yet decided what action, if any, might be appropriate."