g3xxHvvoiLTaXoOmll0eTqKrFIhwjNxd

Saturday, December 1, 2012

Ambush Marketing and the FIFA World Cup

At the FIFA World Cup 2010, "Ambush Marketing" was again in the headlines.

"Ambush Marketing" stands for a special kind of marketing campaign where companies cleverly connect their goods or brands with a popular, often athletic, event, such as the World Cup. Ambushers often try to catch a free ride by paying no sponsorship fees but making consumers believe they are official sponsors of the event. From a legal point of view, Ambush Marketing ranges from creative strategies that do not break any law to clearly illegal uses of logos, phrases, slogans and the like.

Sports as a prime target

McDonald's was the official sponsor of the Beijing Olympics. But in the lead-up to the games, KFC used the marketing slogan "I love Beijing", while Pepsi replaced its usual blue cans with red ones "to show their respect for the year of China".

During the 1996 Atlanta Olympic Games, referring to their new mobile phone, Telecom New Zealand Ltd was successful with an ambush advertisement containing the word "ring" (for the sound of a ringing phone) arranged five times like the Olympic rings and in the Olympic colours.

McDonald's was also at work during the 2006 FIFA World Cup. Its Austrian advertising campaign showed the Federal Chancellor Wolfgang Schssel holding up a red-white-red scarf (the colours of the Austrian flag) saying "AUSTRIA IS WORLD CHAMPION".

The 2010 FIFA World Cup

For the 2010 World Cup, FIFA had its hands full trying to ensure that only official sponsors advertised their brands in connection with the event.

The Dutchy girls

They were all over the media - the 36 women who attended the Netherlands - Denmark match in South Africa wearing matching orange dresses emblazoned with the "Dutchy" beer logo. Bavaria brewery supplied the dresses for promotional purposes during the FIFA World Cup. The trouble is, Bavaria was not an official World Cup 2010 sponsor; Budweiser, a competitor, was. The stunt was a fine example of unlawful Ambush Marketing. The women were escorted out of the stadium but the goal (and then some) had been accomplished: increased exposure of Bavaria's trademark without having to pay official sponsorship fees.

Kulula Air

Kulula, a South African airline who was not an official sponsor, placed ads with the slogan: "UNOFFICIAL NATIONAL CARRIER OF THE 'YOU-KNOW-WHAT'". In the ad the national flag, footballs and a special kind of plastic horn used by South African fans at soccer matches (the so called "vuvuzela") were shown. Kulula is generally known in South Africa for its humorous advertising. According to various reports on the internet, FIFA warned Kulula that the combined use of these attributes created an unauthorised association with the event and was illegal.

Kulula reacted to the warning by placing new ads with the slogan "NOT NEXT YEAR, NOT LAST YEAR, BUT SOMEWHERE IN BETWEEN". The new ad shows a bridge resembling the Cape Town World Cup stadium and golf tees looking like vuvuzela with the accompanying text "Definitely, definitely a golf tee", and other pictures with humorous remarks.

Although all such activities may be considered Ambush Marketing in the advertising sense, from a legal point of view we need to differentiate.

Direct v. indirect ambush marketing

Direct Ambush Marketing activities, such as the unauthorised, illegal use of a registered logo on merchandising goods, or a false or misleading claim to be an official sponsor of an event, clearly constitute infringements.

Indirect Ambush Marketing, on the other hand, is more subtle and falls within a legal grey area. Mercedes' indirect Ambush Marketing campaign at the New York City Marathon 1997 is famous. Although Toyota was the official automotive partner of the marathon, Mercedes had its name written in the sky above the event by aeroplanes.

Another example is Media Markt's "We will get the title" campaign at the 2006 FIFA World Cup in Germany, or the previously mentioned KFC slogan "I love Beijing".

Smart indirect ambushers link the sponsored activity to their brand without violating trademark or copyright rights. The question is whether the campaign leads to unlawful consumers associations or other infringements, such as unfair competition.

Trademark protection

Ambushing clearly breaches intellectual property laws when trademarks are used without a contractual right or licence and trademark rights are infringed. According to the Austrian Trademark Protection Act (Markenschutzgesetz; MSchG) not only the use of an identical sign but also the use of a similar sign with a likelihood of confusion may be illegal. The protection of trademarks with reputation is even stronger. The owner of a trademark with reputation may request third parties to refrain from using an identical or similar sign for goods or services which are not similar to those protected under the trademark.

Unfair competition

Complementary to trademark law, designated regulations of the Austrian Act against Unfair Competition (Gesetz gegen Unlauteren Wettbewerb; UWG) supplement intellectual property law. Unfair business activities include misleading business practices (Sec 2 UWG), imitation marketing of corporate brands (Sec 9 UWG) and other unfair business practices falling within the general clause of Sec 1 UWG. Furthermore, according to the Austrian Supreme Court, an unfair exploitation of the good reputation of an event or false allegations in advertisements misleading the public about the status of the ambusher as an official sponsor may be considered as unfair competition.

Copyrights and personal rights

Intellectual creations in the area of literature, photography, music and art enjoy (without registration) copyright protection under the Austrian Copyright Act (Urheberrechtsgesetz; UrhG). Personal rights such as the right to one's own image may also be violated by an advertising campaign (see the previous Chancellor Schssel example).

Remedies

To the holder of intellectual property rights, Austrian law provides for remedies such as an action for preliminary or permanent injunction, compensation, orders for disposal and destruction or publication of the judgement. The holder of rights may also initiate criminal proceedings against the infringer in various intentional cases.

However, Ambush Marketing campaigns are usually short-lived. Those associated with the 2010 World Cup will end in July when the event ends. That means that a court injunction would probably come too late. Even preliminary injunctions do not provide for much protection in the ambush competition. Ambush Marketing cases are therefore rarely actionable and the claimant will usually be referred to damages - but damages are hard to prove.

Schoenherr

Contacts

Ruth Brandsttter T: +43 1 534 37 4079 E: r.brandstaetter@schoenherr.at

Margit Nemetz +43 1 534 37 125 E: m.nemetz@schoenherr.at

Protect Your Bright Ideas With an IP Lawyer

To make sure that the fundamental ideas that your business has been created upon are protected, you should seek the services of an intellectual property ('IP') lawyer. UK IP law differs from other countries, so this article is only relevant to the current situation in the UK.

In today's world, more businesses than ever are built around a bright idea. The UK has steadily moved from its product based markets to service based markets, thus meaning that intangible ideas and processes are what excels one company from another.

It is not always as obvious as patenting a new product (such a the man who patented his better bedspring invention) some IP is more discreet, for example software developments and graphic designs. Protecting your intellectual property is fast becoming one of the most important steps to take for businesses to be a success.

The issue is an increasingly important one, particularly for small business owners. Many set up their business or go self-employed in order to further develop ideas of their own, in a particular sector where they have specialist experience or expertise. Few set out with an endgame in mind; unless the new ideas are protected there will be little capital raised from selling the business when it comes to a retirement age. Getting expert advice about your IP is a way that you can ensure that your business has a long term value as well as the owner.

The most pro active way of finding out which unique features of your business need protection is to speak to a legal expert. An intellectual property solicitor will help you define what makes your business unique, and establish the extent to which it can be patented, copyrighted or otherwise protected from those who may wish to help themselves to your competitive advantage by copying your achievement, or otherwise trying to benefit from the hard work of development that you have invested in.

A UK IP lawyer will look at your business, the processes you employ and the outputs you create, and decide on the best way to protect them; working out what can be argued as unique, special or different in order to establish a value from the detail of what you do. Protecting your intellectual property can be extremely valuable, as having done this, you are in a much stronger position to defend your business against those who might seek to copy or undermine it in the future. The process will protect you from you previous employees creating rival businesses to compete against you.

What Is the Protection of Business Names Under Intellectual Property Law? Hire Patent and Trademark Attorney to Accelerate the IPR Procedure Every Innovative Irish Idea Deserves to Be Protected Correctly in Law Intellectual Property Infringement and Patent Law Why You Need a Loan Modification Attorney When Your House Is On The Line

Intellectual Property: The Risk of Inaction

Copyright, in its simplest term, refers to the rights bestowed through legislation to protect an individual or business from their work being unlawfully replicated. They bestow rights to the owner in relation to specific activities surrounding the use and communication of copyrighted material. To satisfy the eligibility criteria of being awarded a copyright, several conditions must be satisfied, including that the 'work' must fit into one of the set categories of copyrightable materials; it must be original; the individual(s) or businesses charged with creating must be qualified to do so; and the 'work' must be in some type of written form for verification processes. Copyright law covers a wide range of categories, including literary, musical, dramatic and artistic works; musical works and broadcasts; goods, services, business processes, brands and the like.

Of increasing importance in today's knowledgeable economy is protecting your own and your business's intellectual property (IP). New Zealand is party to the international TRIPS Agreement, which is a specific legislation relating to trade related aspects of intellectual property rights. The internet, and its ability to spread and disseminate information at ever increasing rates, and with increasing ease of access, has created an environment where protecting IP has never been so vital. The risk of releasing new ideas, products or designs without the proper intellectual property registration can result in infringements of existing copyright patents. In New Zealand, violating IP laws may result in large monetary demands to resolve the situation, while additional losses may be experienced in relation to the advertising and marketing activities surrounding the product or brand promotion. Furthermore, with the correct intellectual property protection in place, there is the risk that some other organisation may copy the idea, repackage the product or design, and earn market share and revenue from your work.

It is strongly recommended that thorough searches are conducted through patent and copyright databases prior to commitment of resources to develop and protect IP. This is to ensure that the concept being developed does not infringe on any current patents, as well as provide valuable information in relation to similar or competing ideas. This knowledge is then utilised to further develop the concept, idea or product to better satisfy the market being targeted and differentiate the concept to not only develop a unique selling proposition, but to differentiate the concept from other patented intellectual property.

This process can be time consuming, with those not familiar with New Zealand IP law and the tools to search for existing patents, running the risk of not accessing complete knowledge on the numbers and types of current copyrights which relate to the concept in question. The best way forward is to utilise a reputable and professional company which specialises in copyright applications. This will ensure that your intellectual remains under your ownership, while avoiding any expensive litigation which may result from copyright violations.

Trademark Versus Copyright: Which Applies to Your Content?

In my work, I encounter this particular confusion quite regularly - clients (and adverse parties) seem to think that copyright applies to both a website and its domain name. But this belief is incorrect. Here's a simple, easy way to remember it:

Copyrights are for Content. Trademarks are for goods/services.

So, a client can claim a copyright in the content written on a blog, a website, etc. However, you can't claim a "copyright" in the domain name that hosts your website: it's not really content. It could be, however, a name linked to your goods or to a service that you provide. If so, you can claim trademark rights in that name.

[Note that these rights usually apply whether you register with the Federal government or not! But registration certainly helps your arguments later on, if it comes to that...]

For further information, the US Copyright Office website has a document that explains in greater detail what kind of things can get copyright protections, including literary, musical, and dramatic works. And, likewise, the US Patent and Trademark Office (usually abbreviated USPTO, or just PTO) has a document that explains trademarks in greater detail - it describes them as "a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods [or services] of one party from those of others...." Each US state may also offer trademark or copyright registrations, typically at a lower filing cost, although the usefulness of local registrations may not be great as federal registrations.

Execution of Improved Patents

Scenario:

Company A has a formerly granted patent PA on product P1 while company B has a latter granted patent PB on product P2, which is am improvement on product P1.

Solution:

Normal execution of the above patents is as follows:

If A wants to manufacture P2, then A has to get a license from B, however, if A does not want to manufacture P2, there is no obligation for it to do so. But the most common situation is that because P2 is improved over P1, A feels like to manufacture P2, too, in order to make more benefits, let's say as an example.

If B wants to manufacture P2, in spite of its having the patent on P2, B has to get a license from A for manufacturing P1, too, though in fact what B produces is absolutely P2 but not P1. The reason why B has to get a license from A for manufacturing P1 is that PB falls within the claimed field of PA despite PB's improvement over PA.

So, typical solution is more often like this:

A gets a license for manufacturing P2 from B, meanwhile B gets a license for manufacturing P1 from A which then makes B be able to implement its patent PB. It's usually called a 'CROSS-LICENSE'.

What should 3rd party do?

As to a 3rd party that wants to manufacture P2, it has to get license both from A and B, of course, or else it may be sued by A or B. If it just wants to manufacture P1, a license from A only is enough.

Keywords: patent improvement license cross-license

P.S.: here, 'it' in this article means nothing offending just for representing convenience.

Intellectual Property Solicitors - Why They Are Worth Every Penny

Intellectual property (IP) is anything which has been created in the mind of an individual that is protected under IP law. Included in the list of what is protected are songs, written works, designs, inventions and symbols. The means by which people can protect themselves against others copying their intellectual creations come in a number of forms. The most common types are copyright, design rights, trademarks and patents.

IP is one aspect of commercial law that has a large relevance to a lot of companies. Without realising it many companies deal with intellectual property rights on a daily basis. In some cases the ignorance of the rights that others have over a particular design, piece of text or even symbol can cause very complicated and stressful legal issues.

IP law is a very complicate area of commercial law. The lines between copyright or design right infringement and the simple evolution of a design are very ill defined. In order to decide whether copyright has been infringed there often have to be a set number of differences in the design. The number and definition of these differences is something which very much depends on each individual case.

Disputes over whether copyright or a patent has been infringed can have huge implications for the companies involved. If a company is found guilty of infringement then the damages that are incurred can be very substantial. If you are having issues with IP law then by far the best way to address them is to find good intellectual property solicitors to offer advice and representation. Due to the distinctions between intellectual property right infringements being so ill defined, experience counts for everything. Often the only way to get any bearing on whether IP has been abused is to use cases that have gone before as a guide.

In situations like this the experience of specialist intellectual property solicitors will shine through. Using a non specialist solicitor, even if they have extensive experience in commercial or corporate law, will leave you at a distinct disadvantage, both in the lead up, and in the courtroom itself. Another reason to use specialist intellectual property solicitors is the level of service they will provide. Their particular understanding of IP law will mean that they are far better qualified to explain the situation to you. With this greater understanding of your situation you will be able to make better informed decisions, as well as feeling much more relaxed about the legal situation you are in. When the stakes are so high, using the most experienced and knowledgeable intellectual property solicitors possible will make the whole process far less stressful for you.