The much-anticipated 2023 Netball World Cup is headed to Cape Town, South Africa from 28 July to 6 August 2023 and will be the first Netball World Cup to take place on the African continent. Hitting the headlines this week was the news that Discovery has withdrawn Vitality as the title sponsor of the event, with Spar and Telkom being announced as premium partners and other major sponsors still expected to come on board. Despite the last-minute reshuffling, the show must go on and it seems that the organisers have their eye not only on the ball but also on the possibility of their valued sponsors suffering the effects of ambush marketing. Steps have therefore been taken to guard against this.
But first, what is ambush marketing exactly? Any attempt by a trader to connect itself with a sponsored event, including a sporting event such as the Netball World Cup, without paying sponsorship fees, may be considered ambush marketing. South Africa has legislation in place to protect sponsors' rights and the need to protect those rights is of paramount importance. Sponsors pay millions of Rands for the exclusive marketing rights afforded by their sponsorship deals, and this provides funding for the event. It follows that a failure to protect these rights could jeopardise the event itself and other future events which bring revenue into South Africa.
There are two types of ambush marketing. When a trader or advertiser either directly or indirectly creates the impression that it is associated with an event, or is an official sponsor of the event, this is termed ambush marketing "by association". This amounts to a blatant misrepresentation and is clearly unlawful. However, when someone simply attempts to benefit from the publicity surrounding an event and to gain exposure for their own brand at the expense of the event, without necessarily giving the impression that they are a sponsor, this is termed ambush marketing "by intrusion". This form of ambush marketing is also catered for under South African law.
On 8 July 2023, the Minister of Trade & Industry advertised notice of his intention to declare the 2023 Netball World Cup a "protected event" in terms of Section 15A of the Merchandise Marks Act ("the MMA"). This special protection afforded to the event means that third parties are prohibited from using their own trade marks, without authority from the organiser of the event, in a manner calculated to achieve publicity for the trade mark in question and thereby to derive special promotional benefit from the event. This includes any visual or audible use of their trade marks which in any way, whether directly or indirectly, is intended to be brought into association with or to allude to any event. The broad wording of the section is intended to cast the net (excuse the pun) widely and is aimed at those parties who commit ambush marketing by intrusion, in addition to those committing ambush marketing by association. A number of events have been declared "protected events" since the insertion of 15A in the MMA in 2002, including the 2010 World Cup, the 2009 and 2021 British and Irish Lions tour and the 2013 African Cup of Nations.
In a separate notice, also published on 8 July 2023, and in terms of a different section of the MMA, the Minister of Trade & Industry advertised for comment a prohibition on the use of a host of words, emblems, logos and drawings related to the 2023 Netball World Cup without the authority of Netball South Africa. Images of the protected marks appear alongside this article.
Interested persons have 10 days from the date of publication of these notices to submit written comments.
While the declaration of the 2023 Netball World Cup as a "protected event" will terminate on 6 September 2023, the prohibition on the use of the relevant words, emblems, logos and drawings has been sought in perpetuity and is absolute, which is something prospective trade mark applicants should keep in mind.
Contravening either the "protected event" or "prohibited mark" provisions of the MMA is a criminal offence and not to be taken lightly. As such, businesses should be careful not to shoot too closely to the net and would be well placed to seek advice on any potential marketing and advertising in which any direct or indirect reference to the 2023 Netball World Cup is made. One thing is for certain: the MMA will certainly do a good job of playing goal defence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
