The success of the 2014 FIFA World Cup (held in Brazil from June 12 through July 13, 2014) was not limited to the magnitude of the event. Both the Brazilian government and private sector were tested, and the country proved its capacity and competence to host major events.
The FIFA World Cup left several legacies in Brazil. One of the legacies is the legal innovation introduced by the General Law on the World Cup (Law 12.663/2013) (the “Law”) in connection with ambush marketing—the unfair practice of taking commercial advantage of an event such as the FIFA World Cup without having to pay sponsorship fees to do so.
Commercial practices that amount to ambush marketing were already prohibited in a limited manner under diverse earlier Brazilian legislation, such as the Industrial Property Law (Law 9.279/1996), which protects the trademarks associated with the events; the Olympic Act (Law 12.035/2009), which defines Olympic symbols and ensures exclusive use of the symbols; the Copyright Law (Law 9.610/1998), which governs matters related to mascots, anthems and other intellectual creations applied and used by event organizers; and the Pelé Law (Law 9.615/1998), which protects sporting entities’ symbols aside from Olympic symbols. However, until the FIFA World Cup, there was no legislation in Brazil that dealt with ambush marketing in a precise and detailed manner.
Articles 32 and 33 of the General Law on the World Cup (the section containing criminal provisions) divide ambush marketing into two types: by association and by intrusion. Ambush marketing by association occurs when a business releases trademarks, products or services in order to achieve an economic or advertising advantage by inducing the market to believe that it is one of FIFA’s commercial partners. Ambush marketing by intrusion consists of displaying trademarks, businesses, establishments, products or services, or engaging in promotional activities, in order to attract public attention at the event’s venues, without FIFA’s authorization, in order to obtain an economic or advertising advantage.
These clear definitions allowed businesses, whether official sponsors or not, to determine their strategy for communication and activation of trademarks prior to and during the event. The success of the General Law on the World Cup can be measured by the fact that the unfair practices committed during the event were few and imperceptible, and were resolved by FIFA without having to resort to the courts.
However, the scope of the General Law on the World Cup is limited to FIFA, and, indeed, it will cease to have effect on December 31, 2014. Other entities, such as the football confederations of the countries that participated in the event, are not direct beneficiaries of the legislation.
In any event, the text of the General Law on the World Cup can be seen as a positive step (even if provisional) toward creating legislation that reflects a growing body of precedents on ambush marketing, constructed in large part by actions brought by the Brazilian Football Confederation (CBF—Confederação Brasileira de Futebol) against companies that launch advertising campaigns containing allusions to the Brazilian national team.
In one of these actions, the Superior Court of Justice (STJ—Superior Tribunal de Justiça) found that the CBF’s claims were not an attempt to appropriate national symbols but rather an effort to prevent “their use in a context that clearly refers to the Brazilian national team, whose image rights belong to the CBF” (Resp. 1335624/RJ, published on 03/18/2014).
During this year’s World Cup, the CBF brought three other lower-court actions to prevent ambush marketing by association with the Brazilian national team and obtained two preliminary injunctions in its favor. These decisions, similar to the STJ’s March decision mentioned above, fall squarely within the definition of ambush marketing by association set out in the General Law on the World Cup and reflect the affinity between legislation and the Brazilian courts’ understanding of the General Law in terms of ambush marketing.
Although it is short-lived, the General Law on the World Cup seems to have refined and reinforced concepts that should live on in the Brazilian case law, providing greater legal security to all businesses, whether or not they are official sponsors of sports events. In this connection, it is expected that the provisions found in the General Law will pave the way for uniform and cohesive legislation on ambush marketing for future events to be held in Brazil, such as the Summer Olympic Games in Rio in 2016.
José Eduardo de V. Pieri is an associate at BM&A and advises clients on IP related issues. Mr. Pieri has a LL.M degree on Intellectual Property from John Marshal Law School, Chicago, USA and has been selected as the exclusive winner of the 2014 International Law Office (ILO) “Client Choice Award” in the Intellectual Property.
Pedro Frankovsky Barroso is an associate at BM&A and the head of the IP litigation team and advises clients on IP related issues. Mr. Barroso has a Masters degree in Intellectual Property from University of Strasbourg, France and a Post-Graduation degree in Civil Litigation from Pontifícia Universidade Católica (PUC-RJ), Brazil.