OLYMPIC CONTEXT LIMITATIONS TO MARKETING ACTIVITIES IN SPORTING EVENTS

Transcription

1 OLYMPIC CONTEXT LIMITATIONS TO MARKETING ACTIVITIES IN SPORTING EVENTS General Law of the World Cup and Olympic Act

2 1. Introduction: With the upcoming sporting events to be held in Brazil, such as the World Cup and the 2016 Summer Olympics in Rio de Janeiro, the theme of sports is becoming increasingly popular in marketing actions and advertising activities undertaken by all types of companies. In this regard, when idealizing, producing, and displaying their marketing actions, entrepreneurs and/or advertisers should be aware of the statutory limitations that have been imposed over such events. The Brazilian legislation has awarded FIFA, the Olympic Committee, and the official sponsors with a number of rights that impose several restrictions over marketing and advertising activities performed by third parties (those who cannot afford or chose not to bear with the sponsorship quota). Thus, when outlining their marketing strategies, entrepreneurs and advertisers should refrain from using the official symbols of such events and/or associate their trademarks with these events without due authorization, as such conduct is classified as ambush marketing and will subject the offender to penalties in both civil and criminal spheres, as shown below. 2. General Law of the World Cup The General Law of the World Cup (Law No /2012) has reinforced the rights of FIFA, by ensuring special protection to all of the official symbols/names of the World Cup and by incriminating the so-called ambush marketing. In this regard, three types of conduct were expressly forbidden by the aforementioned law, as follows:

3 (i) (ii) (iii) Unauthorized use of official symbols owned by FIFA; Performing ambush marketing by association ; and Performing ambush marketing by intrusion. Hereafter, we will describe each of the foregoing conducts Unauthorized use of official symbols owned by FIFA index.php/post/2876-uso-indevidoda-marca-da-copa-quintuplica- Among other privileges, the General Law of the World Cup granted special protection to all official symbols indicated by FIFA, by raising their status to highly renowned (i.e the trademark is protected within all classes of activities) until the end of FIFA has already registered certain official symbols, which include figurative marks such as the champion s cup and the official mascots, as well as the phrases Copa do Mundo Brasil 2014, Copa 2014, Brasil 2014 FIFA, Salvador 2014, Recife 2014, Juntos num só Ritmo, All in one Rhythm, among others Ambush Marketing With respect to ambush marketing, the General Law of the World Cup expressly prohibits any party that is not an organizer or sponsor of the event from associating its trademark, product or service with the sporting event. We emphasize that the right to associate a brand, service and/or product with FIFA s events is granted only to organizers and official sponsors, which have made significant investments to obtain such privilege/exclusivity. Therefore, any unauthorized third parties that, in any way, associate their trademark, product and/or service with the sporting event, shall be performing the so-called ambush marketing.

4 As mentioned above, the General Law of the Cup has divided ambush marketing into two distinct categories: ambush marketing by association and ambush marketing by intrusion. Ambush marketing by association aims at suppressing marketing actions or promotion of trademarks, products, or services that intend to, in any way, be linked, even if indirectly, to the World Cup. Please note that such protection is limited to associating with the World Cup and or FIFA; thus, an entrepreneur or advertiser is therefore able to use the theme of soccer, for example, in their advertisements. Nonetheless, the use of such soccer theme cannot create nor induce the public to believe that the trademark or advertised product or service is related to the sporting event of the World Cup, in which case, such advertisement would be classified as ambush marketing by association. On the other hand, ambush marketing by intrusion aims at attaining exclusivity over the display of trademarks of official sponsors in sites in which the events are taking place. According to the General Law of the World Cup, The Union will cooperate with the States, the Federal District and the Municipalities that will host the Events, as well as with other relevant authorities, to ensure that FIFA and any parties indicated thereby will be authorized to, with exclusivity, promote their trademarks, distribute, sell, publicize or advertise products and services, as well as to perform other promotional or street commerce activities within the Competition s Official Venues, its surroundings and main entrances.

5 2.3. Penalties In light of the above, activities such as the misuse of FIFA s trademarks and the performance of ambush marketing may result in the offender being held liable in both civil and criminal spheres. In this regard, without prejudice to any preceding legal provisions relating to the misuse of trademarks, the World Cup General Law has incriminated the practice of unlawful reproduction of any official symbols owned by FIFA, subjecting the offender to imprisonment that may range from 3 months to 1 year. In addition, specifically regarding ambush marketing, the following actions were also incriminated by the General Law of the World Cup also: (a) the unauthorized display of trademarks, products or services, with the purpose of obtaining economic or advertising benefits, through direct or indirect association with the events or official symbols of FIFA, (inducing third parties to believe that such trademarks, products or services are approved, authorized or endorsed by FIFA); and (b) the unauthorized display of trademarks, businesses, sites, products, services, which attract, in any way, attention from the public in venues in which the events are taking place, with the purpose of obtaining economic or advertising benefits. Thus, in addition to being held criminally liable, the offenders will also be held liable for their actions in the civil court, and shall indemnify for damages and the losses suffered by FIFA and the official sponsors. 3. Olympic Act With respect to the Olympic Games to be held in Rio de Janeiro in 2016, ambush marketing was also specifically regulated by the Olympic Act (Law No. 12,035/2009). Therefore, the Olympic Act has reinforced prior existing laws, such as Law Pelé (Law No. 9,615/1998), which already provided for the exclusive use of Olympic symbols by the organizing/ authorized entities of the International Olympic Committee.

6 Additionally, the Olympic Act suspended, during the period between July 5 and September 26, 2016, the contracts executed for the use of advertising spaces in airports or in federal areas deemed as important for the Rio 2016 Games. Thus, enterprise publicity campaigns and business practices should abide by the rules and regulations applicable to the Olympic Games and the World Cup, in order to avoid the risk of possible claims in civil or criminal spheres that may arise out of the failure to comply therewith. For additional information, please contact: Kevin Altit kevin@mattosfilho.com.br T Fabio Kujawski kujawski@mattosfilho.com.br T Paulo Reiff preiff@mattosfilho.com.br T Felipe Gibson gibson@mattosfilho.com.br T Andreia Nogara andreia.saad@mattosfilho.com.br T SÃO PAULO - Paulista Al Joaquim Eugênio de Lima São Paulo SP Brasil T SÃO PAULO - Faria Lima Rua Campo Verde 61 3º andar São Paulo SP Brasil T BRASÍLIA SHS Q6 Bloco C Cj A sala Brasília DF Brasil T RIO DE JANEIRO Praia do Flamengo º andar Rio de Janeiro RJ Brasil T NEW YORK 712 Fifth Avenue 26 th Floor New York NY USA T