The Legal Implications of Sports Marketing | Event Recaps | All MKC Content | ANA

The Legal Implications of Sports Marketing

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A panel of industry experts discussed why the marketing industry loves sporting events so much and how to clear any potential legal hurdles.

Key Takeaways

Brands can leverage sporting events for marketing purposes through:

  1. Sponsorships and engagements. Sponsorships can help brands reach new audiences, engage in strategic partnerships, and improve name recognition. Brands can engage in partnerships with a team or league, an event, a venue, or the players themselves.
  2. Influencer campaigns. It has become more popular for athletes and even their family members to serve as influencers. Regardless, brands are responsible for what their influencers say. Influencers can't say anything a brand can't say, and they have to disclose (in a way that can't be missed) when there is a material connection to the brand (this can include compensation, free tickets, free swag etc.). It is important for brands to have agreements in place with influencers and to vet them (do they have fake followers? Do they post problematic content?) Monitor your influencers and be aware of what they are doing. Act quickly if you see an influencer failing to adhere to guidelines. Provide the influencers with sufficient guidance for them to easily comply with the requirements.

Trademark Infringement

Trademark infringement is the unauthorized use of a mark that is likely to cause confusion, deception, or a mistake about the source of the goods and/or services.

Key "likelihood of confusion" considerations are:

  1. Similarity of marks (sight, sound, meaning, connotation), even if not identical
  2. Similarity of products/services (trade channels, customer sophistication), even if not competitive
  3. Strength of the mark (inherent distinctiveness, "crowded field")
  4. Actual confusion
  5. Intent

Ambush Marketing

Ambush marketing is when a company who is not an official sponsor of a sports event takes advantage of the event's high-profile attention by launching marketing activities that create an association with the event. It is not necessarily unlawful, but companies deploying this tactic do so with the risk of retaliation from event owners, official sponsors, and government agencies enforcing special legislation.

Ambush marketing can generally appear in two forms:

  1. Ambush by association. When a company attempts to use a promotional campaign to imply an official connection with the sports event, its organizer(s), or a participating athlete.
  2. Ambush by intrusion. When a company attempts to market their brand at or near the event's location.

To avoid ambush marketing, make sure you have adequate licensure and agreements in place prior to promoting an advertisement in connection with a sports event. If you are not associated with an event, try to avoid express or implied claims that may lead a consumer to believe you are in a partnership with the event.

If your brand is subjected to an ambush marketing attack, ensure your marketing is clear and that consumers can easily tell you are the sponsor. Purchase sufficient advertising space to minimize encroachment by competitors. Further, try and make your reaction as minimal as possible to avoid bringing more attention to the issue. You may also want to consider pursuing litigation.

CLE Materials

Source

"On Your Mark, Get Set, Go!" Tiffany Ferris, partner at Haynes Boone; Joseph Lawlor, partner at Haynes Boone; Nadine Hovnanian, associate general counsel at Foot Locker. ANA Advertising Law 1-Day Conference, 6/26/24.

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