by: Sara Skinner Chubb

The beginning of February sees football fans putting finishing touches on Super Bowl snack spreads while official Super Bowl sponsors put finishing touches on high-production commercials featuring the NFL’s valuable – and aggressively protected – intellectual property.  It is quickly followed by other massively popular cultural events such as March Madness and the Oscars.  And every day, there are popular television, movie, and other pop culture moments driving public conversation.  Meanwhile, brands who didn’t shell out millions for sponsorship rights often look for ways to join the conversation. by engaging in varying degrees of ambush marketing to trade on the goodwill of these events.

Ambush marketing occurs when an advertiser associates its brand with a prominent event without being an official sponsor, often to the dismay of event organizers and sponsors paying out big bucks for exclusive sponsorship rights. Brands leverage the same principals of ambush marketing when they incorporate references to television, movies and other pop culture moments in their advertising without license or other authorization.

For example, a clothing retailer may promote their 80’s throwback collection set against spooky 80’s synth music à la Stranger Things. In the weeks leading up to the Super Bowl, advertisers may tap into the discussion through the ubiquitous use of the term the “big game” and general references to football or the cities where participating teams are located.  But how far is too far?

Taking it a little further, Samsung hilariously parodied countless conversations between marketing and legal with its 2013 Super Bowl commercial discussing the Baltimore black birds and the San Francisco 50-minus-1-ers. Jet.com got creative in 2017 with its ad released during Super Bowl weekend that highlighted all of the “super bowls” consumers could buy on Jet.com. There was no mention of football and it didn’t pay out millions for an ad slot during the game, however it capitalized on the search traffic for the term “super bowl” to clever effect.

The decision to engage in ambush marketing or other marketing tactics designed to leverage popular culture will depend on an individual advertiser’s tolerance for risk and should be evaluated in collaboration with legal counsel.  However there are a few basic principles to follow to minimize risk:

1.     Don’t use others’ intellectual property without permission

Except under limited circumstances such as trademark nominative fair use, advertisers should avoid using intellectual property they don’t have the rights to. Sponsors pay for the right to include trademarks and logos for the Super Bowl, March Madness and the like in their advertising, and trademark owners granting those sponsorships typically aggressively enforce those rights.

If a retailer wants to run a “get the looks” type campaign, it is tempting to show pictures of the show or the red carpet event to compare the retailer’s own products.  But those images are subject to copyright protections, and the use of them without a license can get a marketer in trouble quickly.

Third party intellectual property in advertising typically falls into three buckets: trademark, copyright and right of publicity. Trademark includes names and logos, as well as distinctive trade dress. Copyright protects works of authorship, including photographs, video, music and art. Screenshots and promotional photos from popular televisions shows and clips of game play are all protected by copyright. Right of publicity laws protect individuals from the use of their name, likeness or persona for commercial purposes without their permission.

Ensure you secure an adequate license before incorporating third party intellectual property into your advertising and remember: just because something is being widely used on the Internet does not make it fair game.

2.     Keep your advertising truthful and non-misleading

For many brands, hopping on the cultural moment bandwagon is about general brand exposure, however in certain situations, an advertiser may wish to promote specific products. A brand may realize it sells similar versions of high-end jewelry, clothing or homewares featured on popular reality TV shows. If that is the case, the brand should not suggest that its version of the product is the same or of similar quality if it is not. Product comparisons should be apples to apples and, to the extent they are not, the material differences between the products should be clearly disclosed. Use extra caution when making price comparisons as there are specific requirements for how price comparison claims must be substantiated. And don’t forget rule number one – make sure you have the right to use any third party intellectual property incorporated in your advertising.

Advertisers should also use caution to avoid suggesting a formal association with a sporting event or entertainment property if there is none. You run the risk of a false association claim if consumers may mistakenly think your brand is an official sponsor when it is not.

3.     You cannot engage others to do what you cannot

The use of influencer marketing is on the rise with no signs of slowing down. It can be used to get your product or message in front of a highly engaged, relevant market in an authentic manner. However it cannot be used as means to say or do things the advertiser could not otherwise say or do itself.

Advertisers must be able to substantiate any product claims, including price comparisons and other competitive claims, made by their influencers and should not permit influencers to use third party IP for which they do not have a license. Engaged influencers who make unsubstantiated product claims or use others’ intellectual property without permission open the influencer and the brand up to liability.

In addition to the principals noted above, taking the time to educate influencers about what they can and cannot do when promoting your product is an essential component of every influencer engagement and will help ensure you run a successful, legally compliant campaign.

Originally published by InfoLawGroup LLP. If you would like to receive regular emails from us, in which we share updates and our take on current legal news, please subscribe to InfoLawGroup’s Insights HERE.