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Guerrilla Tactics within the Concrete Jungle

Ambush Marketing

                  Ever wanted to drink Coke but the cashier told you that they are only serving Pepsi or vice-versa? This is due to the exclusivity arrangement between the establishment and the softdrink manufacturer. Is this contract valid to the discrimination of other softdrink brands? Yes.

What is a contract? It is a meeting of the minds between two persons binding themselves with respect to the other to give a thing or to render a service. [1]An example would be Burger King’s contract with Pepsico to be their exclusive softdrink provider for all their establishments in the Latin America and the Carribean.[2] Would such a stipulation in their exclusivity agreement be discriminatory to the other softdrink manufacturers? No.

Parties in entering into a contact may validly enter into any stipulation, clause, terms and conditions as they may deem convenient as long as they are not contrary to law, morals, good customs, public order, or public policy. This is the reason why they can validly enter into such exclusivity agreements. There is no legal prohibition with regard to softdrink manufacturers and restaurant owners to enter into a exclusivity agreement with another company.  There is also nothing immoral in preferring one brand from the other and its also not contrary to good customs, public order or public policy.

Imagine yourself running for a position for a seat in any institution and in order to promote your name, sponsored an event in order to become relevant to the mind of the voting populace. The main purpose of the event is for the event to be attributed or synonymous with your name, just like an advertisement. Politicians always use this method when they would put up posters on government projects that uses tax money with their picture for us to correlate the project with them. Just imagine that in your sponsored event, people would come dressed up in your opponent’s color scheme. Just like in the song of Parokya ni Edgar stating “Akala ko berde yun pla blue”, where a guy wearing green was amidst others who are all wearing blue, how would it feel to be in a party sponsored by Ateneo then people would come in wearing Green. How would you feel if you were the sponsor? Frustrated? Angry? Humiliated? Aggrieved? Sad? Hate? or Dont care anymore. There is a wide range of emotions that one would feel because after all of the effort you have pursued and to have the rug pulled under your feet or ruined at the last minute is at the least unfair. Is it illegal though? Maybe.

Freedom of Expression is a constitutionally guaranteed right, a person cannot be forced to conform to a certain standard if said form of expression would not be violative of the law. Freedom of Expression however is constantly being abused by media, the populace and even corporations.

In the field of advertising there is a trend that companies, both unknown and well-known companies, employ in order to create publicity which is the main goal of advertising. As some in the advertising industry would say “good or bad publicity is still publicity”. Even over the internet this is very rampant, we have popups, redirecting links, false links, pop under and even hidden links to direct you to their website even if you did not intend to do so. Precisely to produce awareness in their website or the product that they are providing, payment to this internet advertising companies are based on the number of clicks or hits to the website. They work on the concept of probability via numbers. Even if just 1% would actually take the time to read or consider the website seriously and become a potential customer, 1% of 1 million is still more than 25% of 1000 if they did not employ of said underhanded means.

Guerilla or Ambush Marketing is one of the strategies being used today by companies in order to minimize the costs while increasing the effectivity of their advertisements. What are some of the notable Ambush marketing expeditions in recent times that effectively was able to raise the required commotion to become successful.

The Blairwitch Project. Remember this movie? This movie was not advertised in the usual way on how movies are advertised with trailers and such. They created their own Urban Legend, they spread rumors around about the reality of the movie. Here is a sample of the advertisements that they have provided.

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                  Was it successful? Yes. Very successful, in fact for a low budget movie created by college students it become a big hit world wide with people still believing that the movie is an actual footage from the students who disappeared during their videography.

In this case, competition wise, it was said to be ingenious without causing damage to others, unless we take into account people who still walk around believing in the existence of the Blair witch.

There are however those guerilla tactics that created havoc, Cartoon Network’s Aqua Teen Hunger Force in their quest to be known, was thought to be an act of terrorism because of the presence of lighted posters that was thought of to be a bomb.

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                  One of the major concern regarding ambush marketing is when they have stepped over the line with regard to company sponsored events or events that have entered into partnerships with other corporations to promote a specific brand or trademark.

FIFA World Cup is one of such events wherein sponsors spends millions of US Dollars just to become a “partner” for said event. Just how much does it cost to become a partner of FIFA World Cup? According to Bloomberg, Grupo SBF’s Centauro that it would be spending more than $50 million on marketing after becoming a partner for the World Cup.[3]  While big named partners such as Adidas, Coca-Cola, Emirates, Hyundai, Sony and Visa paid at least $100 million each. While during the 2010 World Cup Visa paid around $200 million while ABC, ESPN, and Univision paid around $425 for broadcasting rights.

The price range for such “partnerships” with the event organizers would be determinative of the visibility one would have during the actual event. It can range from being part of a sponsor wall or be plastered all over the location and even onto the field itself.

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Imagine getting almost the same level of publicity at a fraction of the actual costs. This is what Ambush Marketing is all about.  Psychologically they tend to get even more attention. The more the mind is attuned to something, or it is something that we expect to see, the mind is set not to give attention to it anymore. However guerrilla tactic advertising is not the normal mode of advertising and therefore gets recognition in our mind. During the World Cup Finals of 2010, 36 women dressed in orange mini dresses were asked to get out of the stadium when they posed as fans and was later found out to be part of a marketing campaign of a beer company.

The story could be found in the link below together with images on how they bypassed said marketing rights from the legitimate sponsors.

http://www.dailymail.co.uk/tvshowbiz/article-1286568/WORLD-CUP-2010-How-36-stunning-models-posing-Holland-fans-gatecrashed-World-Cup-beer-ad.html

Charges were soon dropped however due to local sentiment of the approach being too draconic. They did not view as stopping a marketing campaign but rather as a punishment for people for wearing orange during the event. [4]

These 36 people even got their tickets supposedly from one of the people working with FIFA and it was traced back to him and he got fired for it. Under the assumption that they paid for the tickets, the price for example for the Finals would range from $440 to $990 per piece[5], multiplied by 36 would be at $35,640. Still quite a lot of saving compared with $100 million paid by those sponsors. However is it actually ethical to engage in such a practice, is it legal to undertake such action?

Let us first take a look at multiple concepts that would have an effect as to what the answer to the questions would be.

I. Right to choose our clothes.

Do we actually have the right to choose what clothes to wear? Is it really draconic for the organizers to get someone out due to the clothes that they are wearing?

We in fact do have the right to choose the clothes to wear. Under Article 19 of the Universal Declaration of Human Rights,  we have the right to freedom of opinion and expression; and this can be expressed through any media.[6]

The Philippine Constitution also guarantees ones right to freedom of expression since our Constitution protects freedom of expression, freedom of speech and freedom of the press[7] We do understand that there are multiple conflicts between Freedom of Expression as well as the different tests on the restrictions to these freedoms. However ambush marketing is not yet tackled by jurisprudence unlike Freedom of Expression vis-à-vis National Security or Freedom of Expression vis-à-vis Libel.

In the case of Ambush Marketing it would be a conflict between Freedom of Expression against Unfair Competition and False Designation of Goods and Services. People do have the right to choose what clothes they would wear but it is still subject to certain standards. If Freedom of Expression is an Absolute Right subject to no restrictions then how come schools are able to prescribe uniforms, which actually effective limits the exercise of such right of choice during, school hours. According to a United States Case, Tinker v. Des Moines Independent School, it prescribes that there are instances where a student would be allowed to wear clothing not prescribed by the school, in this case the students wore black armbands to protest against the participation of the United States in the Vietnam War, the high court however also made a pronouncement that said allowance does not relate to regulation of the length of skirts or the type of clothing, to hair style or deportment. It even stated that we can exercise our freedom as long as we don’t violate the rights of others or cause disruption in the exercise of the rights of others.[8]

In this essence then we are free to choose what we want to wear and cannot be restricted just because we are thought to be part of a marketing gimmick.  We can actually wear anything that we like as long as it would not be violate the rights of others against vulgar words and messages, obscenity and anything against public order and public policy.  It might also be one of the reasons why the charges against said models were dropped after they were dragged out of the stadium.

II. Unfair Competition and False Designation of Goods.

Under our Intellectual Property Laws,  we do have the provisions on Unfair Competition and False Designation of Origin

The provisions are as follows:

Section 168. Unfair Competition, Rights, Regulation and Remedies. – 168.1. A person who has identified in the mind of the public the goods he manufactures or deals in, his business or services from those of others, whether or not a registered mark is employed, has a property right in the goodwill of the said goods, business or services so identified, which will be protected in the same manner as other property rights.

168.2. Any person who shall employ deception or any other means contrary to good faith by which he shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result, shall be guilty of unfair competition, and shall be subject to an action therefor.

168.3. In particular, and without in any way limiting the scope of protection against unfair competition, the following shall be deemed guilty of unfair competition:

(a) Any person, who is selling his goods and gives them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or words thereon, or in any other feature of their appearance, which would be likely to influence purchasers to believe that the goods offered are those of a manufacturer or dealer, other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade, or any subsequent vendor of such goods or any agent of any vendor engaged in selling such goods with a like purpose;

(b) Any person who by any artifice, or device, or who employs any other means calculated to induce the false belief that such person is offering the services of another who has identified such services in the mind of the public; or

(c) Any person who shall make any false statement in the course of trade or who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another.

168.4. The remedies provided by Sections 156, 157 and 161 shall apply mutatis mutandis. (Sec. 29, R.A. No. 166a)

Section 169. False Designations of Origin; False Description or Representation. – 169.1. Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which:

(a) Is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person; or

(b) In commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable to a civil action for damages and injunction provided in Sections 156 and 157 of this Act by any person who believes that he or she is or is likely to be damaged by such act.

169.2. Any goods marked or labeled in contravention of the provisions of this Section shall not be imported into the Philippines or admitted entry at any customhouse of the Philippines. The owner, importer, or consignee of goods refused entry at any customhouse under this section may have any recourse under the customs revenue laws or may have the remedy given by this Act in cases involving goods refused entry or seized. (Sec. 30, R.A. No. 166a)

We do have the right to choose whatever we want to wear but again it is subject to the condition that we are not infringing on the rights of others. However as we look at the provisions aforementioned. Ambush Marketing in fact is the employment of means or devises to make it appear that they are part of the sponsors of the said event and are in fact free-riding on what costs millions for their competitors. Ambush marketing also becomes a false or misleading representation of fact regarding the affiliation, connection or association of their goods with the sponsorship of the event or the commercial activity of their competitor.

By their acts of “gate-crashing” a sponsored event they are actually committing Intellectual Property Law violations namely, Unfair Competition and False Designation of Origin. However this still does not warrant the fact that they could remove people from their sponsored event at whim which bring us to my third point which is how to establish a balance between sponsoring an event and how to handle ambush marketers.

III. Due Process and the Law

In order to achieve a balance in the interests of the sponsors and their events, together with the interests of the fans as well as the advertisers we could implement a method in which to protect the interests of both.

According to the Philippine Constitution, No person shall be deprived of life, liberty or property without due process of law[9], and that the minimum requirements for due process is that there must be notice and an opportunity to be heard to the persons to be affected by the order. It is understandable that these stadiums are private property and that the bill of rights are meant to protect the citizens from the government. However its application can also be used in this scenario so as not to appear despotic and that the actions would be fair.

One of the requirements of due process is the right to be informed. Even our laws admit of publication prior to it being effective in order to accord the citizens of due process by giving notice on what or what not to do.[10] We should therefore accord the same during these events.

As a condition to entry to these stadiums which are organized by a private institution at a private stadium, they have the right to impose certain restrictions. Just like the mall owners who can prohibit certain items from entering their premises because it is a private establishment.  Establishment can and does conduct bag searches during exit or entry, depending on the scenario.[11]During the purchase of the tickets for the World Cup or any event, they could have it printed or disseminate the information on what is allowed or not allowed to be worn during the event.

This would then comply with the requirement of notice, people should now be aware on what are the prohibited items or clothing during the event, this would minimize the risk of pulling out people from the stands just because of suspicion due to their attire only to find out later they are not connected to any marketing campaign, and that they just liked to wear that specific outfit which unluckily coincided with a sponsor’s rival. Once the people are informed they can now make a informed choice on whether they would still purchase a ticket to go to the event or would the curtailment of their choice in clothes enough to stop them from going to the event?  Anyone therefore who would still violate the conditions can now be validly ejected from the studio for violation of a condition in their “contract”.

Ambush Marketing indeed is a very clever way of minimizing costs by using alternative methods of approach to achieve results. However Ambush Marketing should not be used if it means to violate the rights of others, because of Ambush Marketing the rights therefore of legitimate supporters might be hindered in their choice of clothes or items to wear and it also infringes on the rights of the actual sponsors who invested a lot just to make the event possible. If everyone would result to Ambush Marketing then there wouldn’t have been an even in the first place due to the fact that these events actually get their funding from said sponsors.

One of the ways to combat an ingenious idea such as Ambush Marketing is not via draconic approaches which would sway the general public against your favor, we need to come up with ingenious ideas as well for the side of the event. Using current laws and practices we can effectively reduce the risk of Ambush Marketing plus discouraging its practice because of the deterrence of a possible punishment and legal liability.

Original Images courtesy of:

Patrick de Laive

This image, which was originally posted toFlickr.com, was uploaded to Commons usingFlickr upload bot on 19:35, 22 June 2010 (UTC) by NickK (talk). On that date it was licensed under the license below.

http-//commons.wikimedia.org/wiki/File-FIFA_World_Cup_2010_South_Africa_Uruguay2.jpg

George Groutas

This image, which was originally posted toFlickr.com, was uploaded to Commons usingFlickr upload bot on 20:58, 16 July 2010 (UTC) byNickK (talk). On that date it was licensed under the license below.

http://commons.wikimedia.org/wiki/File:FIFA_World_Cup_2010_Argentina_Mexico2.jpg

Derivate of their work was done by anonymouslaw.

This blog is purely for academic purposes only.

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