Qatar 2022 and the importance of brand protection in sport

As November 20^th swiftly approaches, the footballing world – and the world at large – is preparing itself for an unprecedented spectacle – a winter World Cup. There will, however, be a less than wintery feel surrounding proceedings when the tournament kicks off in the deserts of Qatar, with sunny skies and temperatures in the region of 26°C expected for the first matches of the competition. The time of year and its Middle Eastern location notwithstanding, this year’s running of what is generally regarded as the most prestigious tournament in the game will – in terms of both look and feel – be almost identical to any other.

There will be one point of familiarity in particular for the hordes of football faithfuls and, more generally, the countless viewers of any of the major sporting events of the past forty or so years who will tune in at some point during this year’s World Cup four-week run; the prominence of sponsorship in every stadium, every broadcast and every piece of promotional material pertaining to the tournament.

Football’s governing body, FIFA, is almost wholly dependent upon the financial contributions provided by its sponsors in funding the staging of its competitions. These sponsors will, in turn, rely on FIFA to implement a sufficiently effective brand protection strategy to ensure that this year’s anticipated 5 billion-strong viewership are drawn to their brands – and only their brands.

The need for comprehensive brand protection strategies

Organisations like the International Olympic Committee (IOC) and FIFA – as well as the cities hosting their events – seek to protect their own substantial investment and that of their many sponsors from the often parasitic behaviours of third parties. Commercial sponsorship agreements of the type engaged in by the aforementioned organisations have become commonplace in the past fifty years. At the same time, however, the practice of so-called “ambush marketing” has also increased markedly, through which unauthorised parties attempt to take advantage of an event’s popularity and often-worldwide exposure for their own benefit.

FIFA’s own Intellectual Property Guidelines for the 2022 World Cup provide a succinct summary of the rationale behind the brand protection of what they describe as the “most iconic football [competition] in the world” and others like it:

“The Rights Holders will… only invest in FIFA/the tournament if they are provided with exclusivity for the use of the Official Marks and other commercial rights. Without exclusivity… the acquired rights would be significantly diminished in value.”

The actions of Nike at the 1996 Atlanta Olympics provide an infamous example of sponsors’ competitors successfully benefiting from association with a sporting event without any form of sponsorship arrangement. Passing up on an estimated $50 million sponsorship proposal from the IOC, Nike instead opted to rely on the strategic use of advertising space around the host city which was then broadcast to billions of viewers around the globe during television coverage of the Games. Reebok, the official sponsor of that year’s Games, were understandably left feeling somewhat short-changed.

How has the sporting world adapted to these challenges?

Such instances of coat-tail riding have cast a long shadow within the realm of advertising and brands, subsequently incentivising calls for more stringent protection measures to stop the corrosion of sponsors’ investments. Trade marks represent just one of many effective brand-protection tools at the disposal of businesses. Indeed, they are a fundamental element of the protection strategies of high-profile sporting events in supressing the aforementioned threat of “ambush marketing”.

Certain jurisdictions have, however, seen fit to bestow bespoke means of protection tailor-made to the needs of the most prominent governing bodies in order to reinforce their legal arsenal and adequately equip them for the very specific challenges of hosting a major sporting event. The IOC, for example, has historically benefitted from extensive protection in the UK through several Olympic-specific forms of protection enshrined in statute, namely within the Olympic Symbol etc. (Protection) Act 1995 and, perhaps most notably, through the London Olympic Games and Paralympic Games Act 2006. The provisions of the former cumulatively had the far-reaching effect of creating an association right – or quasi trade mark – prohibiting the unauthorised use and registration of trade marks consisting of “controlled representations” or “a representation of something so similar to the Olympic symbol or the Olympic motto as to be likely to create in the public mind an association with it.” The latter piece of legislation ventured even further in its creation of a London Olympic Association Right (LOAR); a super IP right which could be infringed by “any representation (of any kind) in a manner…likely to suggest to the public that there is an association[.]” Brand police are routinely deployed in host cities to enforce event-specific regimes of this sort, thereby minimising the negative impact inflicted by rogue traders, counterfeiters and, perhaps most importantly, cunning competitors attempting to promote and sell their own goods and services.

Can we expect similar enforcement measures in Qatar?

FIFA is no stranger to the war waged collectively by major sports bodies against ambush marketing. During the 2010 World Cup in South Africa, FIFA officials saw fit to eject thirty-six Holland fans from a stadium, after which they were detained and questioned by police. This instance of ambush marketing was, however, considerably less blatant than Nike’s campaign in 1996; the fans in question had simply worn plain orange dresses to promote an unlicensed Dutch beer company who had attempted a similar stunt at the prior tournament in Germany. Nevertheless, the fans’ actions were sufficient to fall foul of the strict ambush marketing rules in place and they were subsequently charged in Johannesburg Magistrate Court.

Following the almost-exponential growth of social media in the years since the 2010 tournament, it is now commonplace for images and footage of major sporting events to be disseminated throughout online platforms within minutes. Over the course of its month-long run, you can expect your social media feeds to be flooded by football-related content regardless of the extent of your interest in the sport. With this in mind, stricter measures should be expected at this year’s iteration of the quadrennial competition.

The timing of this year’s tournament must also be borne firmly in mind when considering the magnitude of FIFA’s brand protection issue. As previously mentioned, rather than taking up its traditional slot in the summer months, the 2022 World Cup will for the first time in its storied history take place over a four week period in the middle of winter for us in the northern hemisphere – throughout which Christmas shopping and the many associated Christmas sales will be at their peak. Attention-grabbing advertising campaigns will therefore be of greater importance for this tournament’s impressive sponsor roster – boasting the likes of Adidas and Coca-Cola – than for any of its predecessors.

FIFA is all too aware of the scale of these companies’ investments in their pursuit to establish a firm presence in the public consciousness during such a crucial period of business and, as such, have been rigorous in their approach to branding. For example, the figurative trade mark “Qatar 2022” is one of many which have been registered for all but six of the forty-five Nice classes.

(Two of FIFA’s most important trade marks for the upcoming tournament)

All products bearing FIFA IP without authorisation will be treated as counterfeits and FIFA have promised to liaise with customs and law enforcement bodies around the world to minimise the impact of such illicit goods. As is common practice amongst large multinational organisations, FIFA will engage in an ongoing process of monitoring of a variety of digital marketplaces for the sale of infringing products. The intensity of this process will inevitably be elevated in the weeks immediately prior to and during the tournament as excitement – and demand for football merchandise – builds.

As was the case in London for the 2012 Olympic Games, the organisers of the 2022 tournament have established Commercial Restriction Areas (CRAs) around stadiums and fan areas within which the conducting of commercial activities without prior authorisation is strictly prohibited. According to Qatar Law No.(1) of the year 2021 on Measures for Hosting the FIFA World Cup 2022, this area comprises:

“the area adjacent to the Stadium or any of the Events Location which is determined by FIFA with a radius that does not exceed 2 kilometres, including the airspace above, calculated from the middle of the Stadium or Events Location[.]”

Fortunately, businesses within the CRAs that have operated regularly for at least six months prior to the start of the event will benefit from an exemption to this rule so as not to negatively impact the local economy in FIFA’s bid to drive out potential perpetrators of ambush marketing.

In an effort to both raise awareness of the restrictions imposed by their IP rights and deter any potential infringers, FIFA has provided guidance on how best to successfully navigate the pitfalls of their brand protection rules while celebrating this year’s tournament:

• Use generic football or country-related images and terminology that does not make use of any of FIFA’s Intellectual Property (e.g. national flags).
• Ensure that any activities engaged in do not suggest any kind of commercial association with FIFA or the event. For example, media articles are permitted to use official trade marks in an editorial capacity so long as they are not used in conjunction with the logo of another company, or used alongside a phrase such as “presented by” or “brought to you by”.
• Usage of FIFA’s marks by individual fans is usually permissable so long as it is without commercial intention and not so excessive as to suggest an association.

Conclusions

It will likely not be until after the dust of the Qatari dunes eventually settle on the 2022 World Cup on December 18^th that we will be able to accurately assess the effectiveness – and stringency – of FIFA’s brand protection efforts relative to previous events of a similar scale.

Nonetheless, equipped with knowledge regarding the approaches taken – and the threats faced – during events in recent years, third parties would be best warned to tread lightly when it comes to the IP of major sporting bodies. Indeed, such suppressive measures are rendered necessary by the ever-increasing pervasiveness of the digital environment and the ease with which infringing goods and content can be shared, promoted and sold.

Furthermore, companies without a sponsorship agreement in place who seek to exploit the popularity of the tournament for their own benefit will likely struggle against what will inevitably take the form of some of the strongest anti-ambush marketing measures implemented in the history of organised sporting events.

More broadly, Qatar 2022 promises to serve as a prime example to businesses of the immeasurable benefit to be derived from the deployment of an effective branding strategy in order to protect the investments of all stakeholders in a perpetually evolving modern world. A full understanding of the law of trademarks and brands can therefore be seen to be essential in tackling the many complex challenges associated with this.