World Cup 2022: Challenges to Arise in IP & Ambush Marketing

Qatar is witnessing the biggest sport event in the globe, the FIFA World Cup 2022, and it is by far the biggest world event to be held in the MENA region. Such a large-scale event will have many legal issues and problems that are anticipated, specifically, marketing and intellectual property, as the business of sport sponsorship is a multibillion highly competitive sector.

This event will be very competitive between various sponsors of the World Cup, therefore, and as previous events have shown us, intellectual property regulations and ambush marketing has played a huge role in legal issues for both countries hosting such events, and the right holders the same. Some people believe football is a matter of life and death, I am very disappointed with that attitude. I can assure you it is much, much more important than that Shankly theory could be expanded to include the sports in general. However, regardless that sport had been created without any financial purpose, sport now is considered to be one of the most important key players in the economic and financial field. However, this development led to the establishment of new dimensions regarding to the legal protection of all the parties involved.

Sponsorship -as an output of this development- due to the important role of it for all the parties in the sport field; in addition to countries who count it as a new source of money comes from sport, sets some standards which should be strictly protected . One of the main instruments for sponsorship is exclusivity, which attract the sponsors for the profit that they will gain from the event, which could dangerously harm the relationship between the sponsor and the sponsored party in case of violation .Considering the expansion of sponsorship rights in the major sport events, the value of these events has increased, whereas the number of companies that can afford the cost of sponsorship rights has reduced due to high competition . Consequently, these unaffordable companies which could not get a sponsorship rights have resorted to undermining the value and benefits of the sponsorship right they failed to obtain . Thus, a consequence of the commercial sponsorship status, a transnational phenomenon was born called ambush marketing .Ambush marketing could not be considered as legal term as it is an expression used by specialists in advertising strategies .

However, , the expression of ambush marketing defined as ‘a marketing strategy that consists in a company hitching a ride on the back of the sponsor of a sports event whose programmed of sponsorship is particularly ill-conceived and/or poorly executed’ . In other words, ‘[a]ambush marketing is a form of marketing where a company takes advantage of the publicity provided by a major event to create awareness for its product without having to contribute or make any financial commitment to the sponsorship of the event’ .The raise in ambush marketing strategies and the creativity of the competitors compresses pressure on official sponsors and the right holders on how they can fight ambush marketing . However, ambush marketing objectives contain several aims, such as; ‘divert attention away from the event towards the unofficial sponsor; attenuate the effectiveness of the official sponsor operation; and modify the reaction of audiences for the benefit of the ambusher’ . A study by the chief marketing officer council showed that advertisers reported that ambush marketing is their top concern , regarding to the high stake for the organizers and sponsors, especially while the sports-related marketing is reaching nearly $100 billion per year .Hosting the World Cup in 2022 will be a big challenge for Qatar, while it will be the first country to host such event in the MENA region and the Arab world .

Economically, the financial benefits of hosting the World Cup often overwhelm of the extreme expenses involved in generating the needed facilities, while the true value which the host nation aims is intangible in nature, which is the worldwide attention . When a developing host country gets worldwide attention, its enormous financial and social achievements can be demonstrated. For instance, Japan re-established itself as an elite member of the worldwide society after hosting the Olympics in 1964 .In 2010, Qatar won the right to host the 22nd edition of the FIFA World Cup, scheduled to take place in December 2022 , which will be the first World Cup ever to be held in the Arab world . However, FIFA is always committed to providing appropriate action to prevent ambush marketing and protect the rights of its sponsors. Therefore, FIFA requirements for the hosting city include significant changes to its law in order to achieve FIFA’s ambitions among several fields, such as commercial and sponsorship .

Qatar has a strong and effective doctrine for IP protection. Internationally, Qatar is a member of the majority of WIPO-Administered Treaties , such as: ‘Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations; Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure; Patent Cooperation Treaty ; WIPO Copyright Treaty ; WIPO Performances and Phonograms Treaty ; Berne Convention for the Protection of Literary and Artistic Works ; Paris Convention for the Protection of Industrial Property ; Nairobi Treaty on the Protection of the Olympic Symbol ; and Convention Establishing the World Intellectual Property Organization.

At the state legislation level, Qatar has several legislations to accommodate intellectual property aspects, such as: ‘Law No. 8 of 2008 on Consumer Protection; (2008) Decree-Law No. 30 of the year 2006 issuing Patents Law (2006); Law No. 19 of 2006 on the Protection of Competition and Prevent Monopolistic Practices (2006); Law No. 5 of the year 2005 on Protection of Secrets of Trade (2005); Law No. 6 of the year 2005 on Protection of Layout Designs of Integrated Circuits (2005); Law No. 7 of 2002 on the Protection of Copyright and Related Rights (2002); Law No. 9 of 2002 on Trademarks, Trade Names, Geographical Indications and Industrial Designs (2002); and Law No. 17 of 2011 on Border Measures to Protect Intellectual Property Right’ . Moreover, Qatar established the “Intellectual Property Rights Protection Department” which is affiliated to the Ministry of commerce and industry , which had a several terms of reference such as, implementation of the provisions of laws and regulations governing trademarks, data, trade names, industrial designs, and geographical indications .In order to secure their intellectual property rights and be protected against the unauthorized use of identical or similar marks, FIFA has around 13,000 trademarks registered worldwide , which mean that Qatar already witness a huge number of trademark application since 2010 . Trademark registration in Qatar is similar to the most countries regarding to the international treaties in such matter.

Qatar trademark registration doctrine is regulated in the Trademark Law No. 9 of 2002 . However, while Qatar follows the International Classification of Goods and Services for the Registration of Marks due to the Nice Agreement, classes 1, 4 to 7, 10 to 14, 16 to 22, 29 and 31 are not completely awarded under the Qatari law . Also, Products covered by class 33 and alcoholic drinks and beverages in class 32 are not registrable. Once a trademark application is submitted, the trademark is examined in terms of form and substance as Qatar follows the anteriority examination system , accepted trademark applications are released in the Trademark Official Gazette . Any concerned party may object to the registration of a published trademark within 4 months from the date of publishing . Opposition cases shall be referred to the Court unless they have been settled by the Registrar or, where the Decision of the Registrar is appealed, a published trademark shall be registered in the absence of opposition, and a relative certificate of registration will be issued . For a period of ten years from the date of application, a registration of a trademark is valid, and renewable for a further period of ten years . In the last 12 months of the existing protective period, the renewal fees for registering a trademark may be paid and a grace period of six months can be submitted for a late renewal application, but extra charges are subject to payment for such a late renewal application .

For each class of products or services, a separate application for the renewal of the registration of a mark is required as far as trademarks are originally registered in more than one class .A registered mark may be allocated to ownership with or without the goodwill of the company. It shall have no effect vis-à-vis any third party if the assignment has not been registered and is published in the Official Gazette of Trademarks. Changes can be registered in the registrant’s name and/or email, modifications which do not materially impact the identity of a trademark and the restriction of the register list of products or services . In Qatar, the use of trademarks is not obligatory to submit applications or to keep registrations of marks in force. If the owner fails to use this trademark in Qatar within five consecutive years from the date of registration, any interested party may ask the court to order the cancelation of a trademark registration. The action to cancel a registered mark cannot be taken on the ground for non-use except where a one-month notice is received from the proprietor of the trademark that the mark is subject to revoked for non-use.

Moreover, The Qatari law prohibit any unauthorized use of a registered trademark such as, ‘Imitation of such a mark applied to goods and/or services of the same class, sale, storage for the purpose of sale, display for sale of goods bearing a counterfeit mark or use of a mark duly registered by another person for the purpose of unauthorized promotion of goods and/or services of the same class’ . Any of these actions may be considered as punishable offenses under the Qatari trademark law.
2.1 Qatar Approach to Prevent Ambush Marketing. Article 20 of Qatar trademark law No. 9 of 2002 stated that ‘The owner of a registered mark shall have the right to prohibit third parties from using his mark, or any sign resembling it in such a way as to be likely to mislead the public, in respect of goods or services for which the mark is registered or for similar goods or services’ . This provision prevents the likelihood of confusion for the registered mark and the hood and services that it provides, but FIFA demands extended beyond that.

The threat on the exclusivity of the sponsorship models arises from ambush marketing activities, where advertising campaigns established to associate themselves with the event without paying the sponsor ship fees, which could confuse the consumer into believing that they have been endorsed by FIFA, which may undermine official sponsors engagement and brand value and deter them from World Cup sponsorship. Consequently, FIFA is always committed to ensuring adequate action was taken to curb ambush marketing by urging the hosting country to enact an event-specific legislation to close any newfound legal loopholes .Until this date, Qatar did not declare about the approach to be taken in order to regulate the 2022 World Cup, but regrading to the mentioned above on the Asian games in Doha 2006 and the pervious host countries experiences which showed how previous organizing committee’s relied upon the host country’s special legislation to respond to ambush efforts , the most logical approach will be establishing a specific law for the 22th edition of the World Cup. IN 2010, the International Trademark Association (INTA) has set a recommendation on principles and guidelines of making special ambush marketing legislation relating to major sport events, which stipulated that ‘the interests of organizers, sponsors, local businesses and property owners, the local community where the event takes place and trademark holders should be balanced reasonably in a decent way, beside consultation with possibly concerned parties should be held before ambush marketing legislation is adopted for the protection of a significant event, event emblem or word.

Also, the special protections for organizers and sponsors of the protected event should be restricted in time to ensure that these protections are in effect only for a specific period before and after the event for a reasonable period. The same applies on the ambush marketing activities, which it should be restricted in a limited scope and defined clearly to include non-sponsor commercial activities to associate the event and establish a confusion among the public. Moreover, ambush marketing remedies should minimize the risk that sponsors may use overreaching rights to the detriment of genuine trademark owners, provided that no specific non-distinctive term or symbol should be given special protection and such symbols should continue to be available for the use of all traders, unless the use of this single term / symbol creates a false impression of the event’s sponsorship. Although, it should be accepted and reasonably considered the validity of pre-existing rights, whether they are intellectual property rights, real property rights, contractual rights etc., particularly when limitations such as ‘ clean areas ‘ or ‘ clean transport zones ‘ should be established.

Nevertheless, the ongoing operations of current organizations, registered trademarks and trade names could include exceptions from breach of ambush marketing laws. Exception categories should be properly and carefully defined. IN order to balance properly the respective parties ‘ rights, ambush legislation on marketing would be preferable if presumptions of breach were to be avoided and rather regarded in evaluating if an infringement happened by including protected emblems or phrases, and the consideration should be taken of the impact of ambush marketing laws on trademark applications, especially for symbols .In Ambush’s law on marketing the only entities responsible for bringing or entitling the civil actions to enforce the law should be the sponsors and/or organizers of the event. Civil remedies could be enacted in the ambush marketing legislation, such as injunctions, damages, seizure of counterfeit goods, and corrective advertising; the available remedies in other types of intellectual property aspects. criminal penalties, such as criminal fines and imprisonment should not be provided.’ .This guideline could be a foundation stone can be built on it for Qatar approach in prevent ambush marketing. Nevertheless, regarding on the previous incidents, ambush marketing activities could not be limited in scope and clearly defined, because it always relying on the creativity of the marketing experts, and often do not form an infringement as far as it forms association with the event.

The World Cup 2022 will not be the first major sport event Qatar will host. However, Qatar has hosted the 15th edition of Asian games in 2006, and a specific-event legislation enacted for the event; in respect of the Protection of Signs, Logos, Compilations and Neighboring Rights of the Fifteenth Asian Games in Doha 2006 . The law stipulated that ‘using or exploitation or circulation or dealing with, in any way, the compilations or the neighboring rights or the signs or logos of the Games shall be prohibited without obtaining a previous license from the Committee provided that such registration should be recorded in the register’ . In other words, Qatar was aware of unlawful marketing activities by putting a comprehensive phrase “in any way” which may include ambush marketing activities. In addition, the law imposed a criminal punishment and fine for any person who ‘hints in bad faith in his/her advertising to the existence of a relationship between the goods or services provided or the activities carried on by him/her and the Committee or the Games or the signs and logos of the Games or their activities or events whether during the Games or any other time’ . This provision could be criticized regarding to permanence of prevention even after the game, while the prevention should be restricted within a specific period.

IN particular, each World Cup has a new set of legislation in place for this event in the host country. While the enforcement strategy for every event is quite different in comparable terms to past iterations including prohibitions against ambush marking and reservations on the exclusive use of the FIFA’s intellectual property for official sponsors, it’s hard to predict how vigilantly brand protection efforts will be until the event begins and marketing initiatives are ongoing . In addition, the culture dimension is also included in this aspect, the prediction on how the local culture of the host country and the residents will affect the legal response to the marketing efforts of non-sponsors attempting to relate to the Games, either on-site or near site .

This chapter indicates a critical analysis for the stipulated legal framework of the organizers and the previous the countries who hosted a major sport event and demonstrate the effectiveness for these legislation in preventing ambush marketing. In addition, the chapter illustrate the intellectual property legal framework in the state of Qatar and the extent that these laws could face ambush marketing, and the recommendation for the state of Qatar on establishing a specific law for the 2022 World Cup and how they can implement specific provisions to repression ambush marketing activities.

Written by, Adv. Odai  Kallab

References :

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[1] FIFA is relying on trademark registration in the hosting countries, which has around 1,116 trademarks in Brazil, 400 of which were registered after the World Cup Law came into force.

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[1] Ibid. [1] Ibid, Art 11. [1] Ibid, Art 15 (1). [1] Ibid, Art 15 (2). [1] Ibid, Art 15 (3-6). [1] Ibid, Art 18. [1] Ibid, Art 19. [1] Ibid. [1] Ibid, Art 20. [1] Ibid, Art 46-52. [1] Ibid, Art 20.

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[1] Law No. 27 of 2004 in respect of the Protection of Signs, Logos, Compilations and Neighboring Rights of the Fifteenth Asian Games in Doha 2006.

[1] Ibid, Art 8. [1] Ibid, Art 9. [1] James and Osborn, op. cit, (n.48). [1] John Grady, Predicting the Future for Rio 2016: Legal Issues in Sponsorship, Ambush Marketing, and Social Media, ESLJ vol.14 (2016) pp 1.

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