The start of the Madrid Tennis Open once again puts on the table one of the most tempting – and most delicate – strategies of contemporary marketing: getting into the noise of a great event without paying the toll of official sponsorship. The proximity of other international mass events, such as the FIFA World Cup or the tours of artists and bands that bring together crowds in small spaces, are elements of attraction. Rosalía’s Lux Tour 26 tour in Madrid has added 70,000 in-person spectators; The final of the Soccer World Cup was watched by 1.42 billion people, according to FIFA data. This area has a lot to do with the famous photograph of the 36 young Dutch women expelled during the World Cup in South Africa for wearing orange in an action linked to the Bavaria brewery, when the sponsor was Budweiser, a classic example of ambush marketing (or ambush marketing) by association. The lesson remains valid: when creativity becomes a maneuver to make people believe that a brand is part of the official ecosystem of the event, the risk skyrockets. The practice is known: a brand tries to take advantage of the social impact, the emotional context and the media attention generated by a sports competition, a festival or a cultural event to obtain extra visibility. The problem begins when that closeness stops being contextual and begins to suggest an official relationship that does not exist. This is where the red line described by experts in trademark and intellectual property law is activated. As Pilar Sánchez-Bleda, managing partner of Media & Tech at Auren Legal, recalls, ambush marketing “was born with a very clear philosophy: associating a brand with a massive event without being an official sponsor, taking advantage of that non-consensual association to generate confusion in the public and benefit from it.” Professionals draw the legal border that should not be crossed. Patricia Revuelta, intellectual property partner at Ecija, summarizes the criteria clearly: «Spanish legislation does not prohibit in the abstract that a trademark makes reference to a major event. What is prohibited is the improper use, not the simple exploitation of the context.» The key, he adds, is in the impression that the relevant public receives: “The red line is crossed when the public may think that said brand is, in fact, an official sponsor.” Cristina Duch, intellectual property, industrial and technology partner at Pérez-Llorca Spain, places the threshold at “improper association” with the event or its official sponsors. As explained, the infringement can occur due to risk of confusion or by taking advantage of another’s reputation, even if there is no express declaration of sponsorship. In other words: you don’t have to say “we are sponsors” to have a problem; It is enough to build a sufficiently suggestive appearance. The first prohibited area is obvious: using distinctive signs, official names, emblems, trophies, mascots, mottos or any protected element of the event or its sponsors. It is also appropriate to use formulas such as “official sponsor”, “partner” or other expressions reserved for those who have paid for that right. The second area, more subtle, is that of false appearances: campaigns that do not literally copy anything, but build a mental association that is too close. In Spain, the legal response comes mainly through unfair competition and brand protection; There is no autonomous classification of ambush marketing as an infringement per se. But in other countries the regulation is much tougher. Pablo Hooper, intellectual property and sports partner at Pérez-Llorca México, explains how the Aztec country has strengthened its legislation to convert this conduct into a specific administrative infraction, with sanctions and possible compensation.
New figure
Hooper points out that this new figure sanctions anyone who «causes or induces the public to confusion, error or deception, by making people believe or unfoundedly assume the existence of an official sponsorship relationship.» In this model, the debate on confusion or parasitism is brought forward and toughened, and the brand that plays on the edge of legality is exposed to a much faster and more forceful reaction. Taking risks in Madrid is not the same as in a country where the law already expressly punishes mere improper association. Spanish courts do not usually resolve these cases with mechanical rules, but rather with a global and case-by-case analysis of the campaign. Revuelta speaks of a “trifocal” approach—material, intentional, and effective—to distinguish legitimate creativity from unjust exploitation. Duch, for his part, emphasizes that the analysis focuses above all on the material element: the use of signs, symbols, expressions, visual or sound codes that clearly evoke the event or its protected marks. This examination includes the entire message, not just an isolated piece. The text matters, but also the image, the sound, the timing and the broadcast channel. A campaign can be ingenious, even opportunistic, and remain legal if it does not lead to the belief that there is a commercial link with the organizer or its partners. The practical recipe, according to experts, is clear: avoid any direct or indirect reference that suggests sponsorship, collaboration or official link. It is also advisable not to use hashtags, visual codes or legends that are part of the event’s protected trademark universe, and to review each campaign as a whole before launching it. Revuelta adds that, in Spain, the best strategy is to work with messages “aligned with universal values such as effort, sportsmanship, improvement, speed, talent” and not with signs reserved for the event.
International campaigns
Pilar Sánchez-Bleda, managing partner of Auren Legal, emphasizes that international sponsorship contracts are complex because they must respect “the advertising limits of the different territories in which the event will take place.” The expert gives a key idea: “behavior such as ambush marketing, clearly an attack against sponsorship, should be vigorously prosecuted.” The border between taking advantage of current events and appropriating the event has never been so narrow, nor have the available means so broad and affordable. A temptation that can be expensive.
