Lawyers to marketers: “Know thine Rugby World Cup enemy”

With the Rugby World Cup only 18 months away, many businesses are thinking about how they can leverage off this event. And the prudent answer is ‘very carefully’, bearing in mind the provisions of the Major Events Management Act 2007 (MEMA).

MEMA is intended to provide a clear, predictable and fair regime for dealing with ambush marketing (companies or advertisers who seek to capture the benefits enjoyed by sponsors without the authorisation of the event organiser) in relation to major events like the Rugby World Cup. And it specifically deals with two forms of ambush marketing:

  1. By association: where an advertiser misleads the public into thinking that it is an authorised partner or somehow associated with the event. For example, this occurred at the 2000 Sydney Olympic Games when Ansett was the official airline sponsor, but Qantas (which sponsored swimmer Ian Thorpe) ran a concurrent and aggressive advertising campaign.
  2. By intrusion: where an event is used by an unauthorised business to draw attention to its brand from an audience gathered solely for the major event. An example is advertising in a restricted area [confusion still reigns, apparently – ed] around a venue or giving away supporter flags, bearing the unauthorised business’ brand, outside a venue for members of the crowd to wave during the event.

Ambush marketing activities by association include offering, giving away or selling a ticket to the event in connection with the promotion of goods or services.

So how could this affect, say, a New Zealand plumbing supply company which offers its customers a draw to win tickets to the Rugby World Cup? Arguably, such activities would be in breach of the Act.

Other protections

MEMA also provides for protection of words and emblems that could denote a connection with a major event, whether or not they are eligible for registration under the Trade Marks Act 2002 and/or actually registered.

In relation to the Rugby World Cup, the words ‘Rugby World Cup’, ‘World Cup 2011’, ‘World in Union’, ‘Rugby New Zealand 2011’ and ‘Webb Ellis Cup’ are protected, as are the associated Rugby World Cup and IRB logos.

Returning to our example, using the words ‘Rugby World Cup’ to promote the ticket giveaway, or showing pictures of the tickets, may leave our plumbing company in contravention of the Act. And border protection measured equivalent to those under the Trade Marks Act 2002 are available to restrict materials bearing protected major event words or emblems from being imported without the authority of the event organiser.

What CAN be done?

All is not lost for business opportunities around major events. The following activities will not amount to an infringement as long as they are carried out in accordance with honest commercial practices:

  • The use by a person of their own real name or address
  • The use of a person’s legal or trade name or an existing registered trade mark
  • Existing businesses and organisations continuing to carry out their current activities. For example, if you currently produce and sell casual shirts printed with ‘NZ’ and a picture of a rugby ball you would not infringe, as opposed to if you specifically produced and sold shirts printed with ‘RWC 2011’, which would infringe
  • The use of words or emblems which indicate the kind, quality, quantity, value, geographical origin, time of production of goods or of rendering of services, or other characteristics of goods or services. For example, a rugby ball with a sign at a point of sale stating ‘Rugby Ball. Made in New Zealand’
  • The use of representations that are necessary to indicate the intended purpose of a product or service. For example, an advertisement for ‘New Zealand Rugby Tours’ would not infringe as opposed to ‘NZ Rugby World Cup Tours’ which would, and
  • The editorial use of names, words or emblems, such as for current affairs, criticism or review.

It is not entirely clear whether our hypothetical plumbing promotion would fall within any of these exceptions. The promotion would need to be quite clearly worded to ensure that it did. Further information and examples can be found on the Ministry of Economic Development’s website.

In summary, if your business is thinking of running a promotion around or incorporating the Rugby World Cup theme (or indeed any other major event such as the 2010 World Rowing Championships at Lake Karapiro), you must ensure your promotion falls within the above exceptions. Or you could end up in the sin bin.

  • This article first appeared in NZ LAW’s member firm client newsletter Fineprint, Winter 2010.

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