Ambush Marketing, The Nigeria IP Laws And The Future By; Rockson Igelige

Ambush marketing is a phrase coined to amplify a brand which
connects itself to a particular event without paying any
sponsorship fees to be an official sponsor. This was best
demonstrated in the case of Usain Bolt at the 2016 Olympic in Rio
Brazil where he kissed his Puma shoe after winning the 100 meters
dash. Nike, the sportswear giants was the Official Olympics sponsor
and a rival to Puma in the sportswear business. This is a clear
case of ambush marketing. And it is this creativity and innovation
being employed by the proponents of ambush marketing that has made
our intellectual property laws in the different countries helpless
in matters relating to ambush marketing.

The existence and manifestation of this phenomenon at global
sporting events has become emboldened and deeply rooted so much so
that legal experts are working around the clock to curtail this
menace by devising other ways outside the known traditional
intellectual property laws. But in Nigeria it is a strange practice
and malady that is still unknown despite the fact that we have
hosted global sporting events like the Junior World Cup and African
Cup of Nations before now. It may interest us to note that one of
the conditions of FIFA for awarding countries the right to host the
World Cup deals with how ambush marketing can be tackled through
the instrumentality of the law outside the known traditional
intellectual property laws that have become deficient in this
sphere. The existing traditional intellectual property laws of most
countries including the ones of Nigeria tackle issues relating to
the unauthorized use of a registered trade mark, logo or slogan,
use of a copy of any artistic work protected by copyright or a
deliberate misleading of the public.

The cases of ambush marketing that has dominated sporting events
in the last few years has thrown up a big challenge, thereby making
mockery of the existing traditional intellectual property laws in
place globally. Although frantic efforts have been made to curtail
ambush marketing at the global level by using the existing
traditional intellectual property laws, the limited number of case
law on the subject outside this jurisdiction has proven that the
existing institutional and legal framework are inadequate in the
task of curtailing the practice. The traditional intellectual
property and unfair trade laws cannot guarantee any protection
because of the creativity of ambush marketers who know the wordings
of the laws well enough not to breach them. Not even the
intellectual property law plus that was initiated as a
complimentary effort has been able to address this lacuna.

The few cases against ambush marketing that were successful even
though their claims were founded on traditional intellectual
property laws were those brought under laws on the appropriation of
trademarks or breach of copyright. A good example of this is the
case of Arsenal Football Club and Matthew Reed. In this case,
Arsenal Football Club filed an action against Reed for selling club
merchandise without a license from the club. The merchandise had
the club logo, which was trademark protected, on it. Reed’s
argument that he used the logo as a mere badge of allegiance was
rejected by the Court.

The ambush marketing cases that event owners and official
sponsors find most challenging are those related to intrusion and
association, given the fact that these practices fall outside the
ambit of traditional intellectual property laws. The New Zealand
“Ring Ring” case is a typical example of how imaginative ambush
marketers can be in order to avoid breaching the laws; though upon
close examination “Ring Ring” was found to be a clear reference to
the Olympic ring symbol. Pepsi’ use of NBL team`s home town instead
of the team names themselves was done to avoid breaching
trademarked names. The two instances cited above (Ring Ring case
and Pepsi) show that traditional intellectual property laws are
like a toothless bulldog in any fight against ambush marketing.
There is need for far reaching legislation that would be a more
effective weapon for tackling all aspects of ambush marketing.

The reason(s) for ambush marketing is not farfetched. Global
sport events like the Olympics and the World Cup have become battle
grounds where marketers try every trick in their kitty in their bid
to convince consumers of the desirability, if not usefulness, of
the products or brands they promote. And the reason why marketers
pull out all the stunts at these events is plain enough: they
constitute the two largest global sporting events with mammoth
broadcast reach, thus providing marketers the most advantageous
occasion for advertising their products to consumers. The 2008
Beijing Olympics is a good example of the audience reach of the
Olympic Games. It is on record that the games were beamed to a live
audience of over 4.7 billion or 70 percent of the World
population.

The tussle by different brands to outdo themselves at major
sporting events like the Olympics or World Cup is linked to the
commercialization of these events, with particular regard to
corporate sponsorship. Sport sponsorship is an attractive area for
both companies and event organizers from the perspective that they
provide the most coveted room for selling their brands to a wide
audience. There is also the additional benefit of a boost to the
image of a company for identifying with the event and the real
sport heroes. The sole aim of sport event organizers is to maximize
income, and corporate sponsorship is a very effective means of
achieving this goal.

Sponsorship takes different shapes and shades. It can be in the
form of official sponsorship of the main event, or of athletes, or
even a team. In most cases, companies that lose their bid to secure
the status of official sponsor of the main event would opt for
identifying with a particular team or athlete for a chance to
showcase their brand to spectators’ sponsors. It is this interplay
of differing forms of sponsorship that gave birth to the phrase,
ambush marketing. While event owners and official sponsors see
ambush marketing as detrimental to sporting events, those who
engage in it see their action as squarely within the ambit of the
relevant laws. But no doubt, if the activities of these ambush
marketers are left on unchecked, they could lead to dire
consequence such that sponsorship of major events like the Olympics
and the World Cup would be difficult to secure.
From the above analysis, can we comfortably say that the Nigeria
intellectual property laws can curb this menace? Before we proceed,
we must note that the Nigeria legal system evolved from the United
Kingdom, and by extension our intellectual property laws are almost
the same as that of the United Kingdom. And the lacuna in both
Countries’ laws are to a reasonable extent cemented by the
international treaties that they are signatory to. While the
Copyrights, Patents and Design Act, 1988 is the regulatory legal
framework for intellectual property matters in the United Kingdom,
the Nigerian Copyrights Act, 2004 is the one in Nigeria. A cursory
look at the two laws of both countries show that the one of the
United Kingdom Act has undergone serious legislative furnace than
the other in matters relating to the handling of intellectual
property matters. Inspite of this legislative height already
attained in handling matters relating to IP by the United Kingdom,
during the London 2012 Olympic, a sui generis legislation was put
in place specifically to curb ambush marketing. And this helped in
no small measure in reducing the parasitic activities of ambush
marketers.

In Africa, South Africa is already ahead of Nigeria in this
sphere. The laws put together for the South Africa World Cup 2010
were so all-embracing that Ambushers found it very hard to explore
loopholes. The South Africa World Cup 2010 model of the fight
against ambush marketing has become a ray of hope to future
sponsors and event owners. Sport analysts are agreed that South
Africa is the first country, arguably, to take the boldest step in
this direction. The South Africa experience in the fight against
ambush marketing shows how effective legal instruments can be when
appropriate and all-embracing laws are in place and there is a
willingness to enforce them.

The future of Sport in Nigeria especially as regards ambush
marketing is in a special legislation being put in place to check
the activities of smart ambush marketers. Our intellectual property
laws are deficient in this area. If you are still in doubt then
tell me the section of our intellectual property laws that you can
invoke against Usain Bolt that kissed his Puma shoe? A sui generis
legislation in place against ambush marketing will go a long way to
encourage Sport sponsors and marketers.
We must act now. The future should be today. The World is leaving
us behind. Our brother, South Africa has set the ball rolling since
2010.
ROCKSON IGELIGE, AN ENTERTAINMENT LAW LAWYER WRITES FROM
OLEH,DELTA STATE.

NAF in Show of Force on Kaduna-Abuja
Expressway
In an effort to support more effective security measures along the
Kaduna-Abuja Highway, the Nigerian Air Force (NAF) has conducted a
“Show of Force” Exercise in Katari village, one of the identified
criminal hotspots along the Route.

The exercise, which combined aerial and ground operations by NAF
Special Forces (SF) and Regiment personnel, is intended to send a
stern warning signal to criminal elements, that the NAF and other
security agencies are ready to engage them both from the air and on
ground to frustrate their nefarious activities.

Two armed helicopters, along with 50 fully armed personnel, were
deployed for the exercise, which simulated a rummage where the SF
stormed a criminal hideout and arrested some suspects who were
flown away for further interrogation.

The Team Leader and Commanding Officer of the Regiment Wing, 453
Base Services Group NAF Kaduna, Wing Commander Leonard Onugha,
while addressing the men after the exercise, said the NAF, in
collaboration with other security agencies, is doing all it can to
ensure a safe corridor for commuters who ply the Kaduna-Abuja
Highway.

He therefore urged all well meaning Nigerians to go about their
legitimate businesses and report any suspicious activities or
persons to the security agencies.

Certain portions of Kaduna-Abuja Highway have been susceptible
to the activities of armed robbers and kidnappers, who randomly
attack and kidnap commuters for ransom and rituals.

In compliance with the directives of the Chief of the Air Staff,
Air Marshal Sadique Abubakar, the NAF, as part of its
constitutional role of providing aid to Civil Authority, will
sustain aerial surveillance and armed vehicular patrols along the
Highway and Rail line to consolidate ongoing efforts to ensure safe
travels for law-abiding citizens.

IBIKUNLE DARAMOLA
Air Commodore
Director of Public Relations and Information
Nigerian Air Force