Download Document

SPOOR & FISHER
SCORING MARKETING
GOALS BY AMBUSHING
By : Dr Owen Dean
SPOOR & FISHER
“SCORE”
“Achieve (a success etc.); obtain (results) in a
test of abilities, capacities; make (a hit) make
(a gain).”
The New Shorter Oxford Dictionary
SPOOR & FISHER
“MARKETING”
“The action, business, or process of promoting
and selling a product.”
The New Shorter Oxford Dictionary
SPOOR & FISHER
“GOAL”
“The object of one’s ambition or effort; a
desired end or result; an end result towards
which behaviour is consciously or
unconsciously achieved.”
The New Shorter Oxford Dictionary
SPOOR & FISHER
GOAL
“Look, if you’re in the penalty area and aren’t
quite sure what to do with the ball, just stick it
in the net and we’ll discuss all your options
afterwards.”
Bill Shankly, soccer manager to player
SPOOR & FISHER
“AMBUSHING”
“Dispose (troops etc) in concealment among
bushes or elsewhere, in order to surprise an
enemy; waylay.”
The New Shorter Oxford Dictionary
SPOOR & FISHER
SCORING MARKETING GOALS
•Marketer’s raison d’Etre! – ambushing?
•Case Study: FIFA World Cup 2010
SPOOR & FISHER
“AMBUSH MARKETING”
“Ambush marketing takes place when a trader
seeks to utilise the publicity value of an event,
for instance a major sports tournament or
concert, to gain a benefit from it despite not
having an involvement or connection with that
event and more particularly having made no
financial contribution to entitle him to derive
benefit from it.”
“Ambush Marketing” by O H Dean, De Rebus, June 2000
SPOOR & FISHER
“AMBUSH MARKETING”
“Advertisement may not take advantage of the
advertising goodwill relating to the trade mark
or symbol of the product or service of another,
or advertising goodwill relating to another
party’s advertising campaign or advertising
property, unless the prior written permission of
the proprietor of the advertising goodwill has
been obtained.
SPOOR & FISHER
RATIONALE FOR PROTECTION
•Major events require sponsorship
•Investors require return on their investment
•Ethics
SPOOR & FISHER
AMBUSH MARKETING
•Association
•Intrusion
SPOOR & FISHER
ASSOCIATION
“In this form of ambush marketing, the ambush
marketer misleads the public into thinking that
he is an authorised sponsor or contributor
associated with the event.” –
“Ambush Marketing” by O H Dean, De Rebus, June 2000
SPOOR & FISHER
INTRUSION
“The ambush marketer seeks not to suggest a
connection with the event but rather to give his
own name, trade mark, or other insignia
exposure through the medium of the publicity
attracted by the event; this is done without any
authorisation of the event organiser.” –
“Ambush Marketing” by O H Dean, De Rebus, June 2000
SPOOR & FISHER
SPOOR & FISHER
ASSOCIATION
SPOOR & FISHER
SPOOR & FISHER
WEAPONS TO COMBAT ASSOCIATION
•Registered Trade Marks
•Registered Designs
•Prohibited Marks
•Copyright
•Passing-Off
•Trade Practices Act
•ASA
SPOOR & FISHER
INTRUSION
•Protected Event in terms of Section 15A of the
Merchandise Marks Act
•Abuse of Trade Mark
•ASA
SPOOR & FISHER
ELEMENTS OF INTRUSTION
•Use trade mark, even one’s own registered
trade mark
•Manner of use of that trade mark must achieve
publicity for it
•Use of mark must be brought into relation with
or allude to the event
•User must derive special promotional benefit
from alluding to the event
•User must intend all of the above
SPOOR & FISHER
SPOOR & FISHER
SPOOR & FISHER
SPOOR & FISHER
SPOOR & FISHER
CONSEQUENCES
•Criminal offences under the Merchandise
Marks Act and/or Trade Practices Act and/or
Copyright Act
•Criminal offence under the Counterfeit Goods
Act
•Civil infringement under IP statutes
•Common law delicts of passing-off and
unlawful competition
•Breach of the ASA Code
SPOOR & FISHER
CONSEQUENCES
•Sanctions:
-
Fines and/or imprisonment imposed on
company and/or director
-
Interdict against company and/or director
-
Prohibition of advertising by ASA
SPOOR & FISHER
IMPLICATIONS OF PROHIBITIONS
•Marketers must take care
•Stakes are high
•Seek legal advice
•Effect on existing sponsorships
SPOOR & FISHER
CONCLUSION
•Undesirable practice
•Eradication sought world-wide
•Constitutionality
•“The show must go on”
SPOOR & FISHER
FOOTBALL
“Some people think football is a matter of life
and death … I can assure you it is much more
serious than that.”
Bill Shankly
SPOOR & FISHER
HOW TO PROTECT
YOUR OWN BRANDS
SPOOR & FISHER
Increased Commercial Activity 2010
• Impact on SA GDP expected R20 billion
• Create 150,000 jobs
• Create 7 billion in additional taxes
• 350,000 tourists : revenue of R15 billion
• Consumption, transport, tourism
• Need to plan to extract maximum benefit
SPOOR & FISHER
Adequate Trade Mark Protection is
Essential
•
Your Trade Mark portfolio keeps track with
developments
•
True or False?
•
We need to anticipate 2010 market
conditions now!
SPOOR & FISHER
Narrow Window of Opportunity
Registration is a pre-requisite
•
Civil Trade Mark infringement
•
Criminal anti-counterfeiting enforcement
Unregistered Trade Mark
•
Common law of passing off
•
Complaints before the ASA
SPOOR & FISHER
Life Cycle of a Trade Mark
Conception
SPOOR & FISHER
Availability Search
SPOOR & FISHER
Decision to file
SPOOR & FISHER
S&F files the application

24 hours
SPOOR & FISHER
Registrar issues official action : 1 - 2 years
SPOOR & FISHER
Acceptance of
application

1 – 3 months
SPOOR & FISHER
Statutory Advertisement
period

3 months
SPOOR & FISHER
Certificate of
Registration

1 year

Total: 3 - 4 years
SPOOR & FISHER
Is it already too late?
•
Registrar is reducing examination time
•
Expedited issuing of certificate
•
Optimistic time line is 24 - 30 months
•
2009!
SPOOR & FISHER
Thabo Mbeki
Germany July 2006
“The 2010 FIFA World Cup will constitute a tribute to
the effort, not only of South Africa, but of all Africa,
to recover from many centuries of difficulties.
Despite our problems, football has proved an
inspiration to overcome these problems.
Africa is ready, Africa’s calling, come to South Africa
in 2010”
SPOOR & FISHER
Fifa Logo Application
SPOOR & FISHER
Filed in 37 classes in almost 30
countries in Africa
SPOOR & FISHER
• Trade mark Infringement
• Counterfeits
SPOOR & FISHER
Any Questions?