How Will The Government Deal With Ambush Marketing if the World Cup Comes to the Netherlands?
Answers of the Ministers of Financial Affairs, the Interior
and Kingdom Relations, Economic Affairs and Justice to the written
questions of the Minister of Health, Welfare and Sports regarding
FIFA and the World Cup bid 2018/2022
Together with Belgium, the Netherlands is a candidate for the
World Cup of 2018 or 2022. The Bid Book for this event was recently
sent to FIFA. FIFA wants all kinds of 'ambush marketing'
(profiting from the media attention during a certain event as a
non-sponsor) to be prohibited, and insists that a fine should be
paid to it immediately if such prohibitions are breached. FIFA
wishes to prohibit, inter alia:
'ambush marketing (…) or marketing activities through
which one targets the audience of the Events, including ticket
holders, in order to gain exposure for its businesses, products
or services without authorization from FIFA'.
The Dutch government
has refused to accept this requirement with
the following words: 'There is no specific "ambush
marketing law" in Dutch and Belgian legislation. We
consider "ambush marketing" to be covered by a)
intellectual property laws, more specifically the copyright and
trademark law, b) unfair competition law, more specifically
misleading and comparative advertising law and the unfair
commercial practices law, and c) general tort
law.'
Further Questions
In response to further questions of the Minister of Health,
Welfare and Sports, the Ministers of Financial Affairs, the
Interior and Kingdom Relations, Economic Affairs and Justice have
indicated how action can be taken against possible ambush marketing
during the World Cup:
"As mentioned in my letter to the Lower House dated 21
June 2010, the protection of the commercial rights of FIFA is
regulated sufficiently in existing laws and regulations. The action
by the South-African police during the World Cup was based on laws
that facilitate criminal law intervention in order to protect
commercial rights. As mentioned in guarantee 8, in Dutch civil law
protection against 'ambush marketing' can be offered in
three ways, namely through laws in the fields of intellectual
property, unfair competition (such as unfair commercial practices
and misleading advertising), and tort. Unfair commercial practices
(Section 6:193a et seq. of the Dutch Civil Code ("BW"),
misleading advertising (Section 6:194 et seq. of the BW) and tort
(Section 6:162 of the BW) only allow for civil-law measures to be
taken. In addition to my letter of 21 June 2010 I wish to remark
that besides civil-law provisions, copyright and trademark laws
also contain criminal provisions, namely in Section 31bis of the
Copyright Act and Section 337 of the Penal Code, respectively. If
FIFA reports a possible criminal offense to the police, the police
and the Public Prosecution Service will examine in the manner that
is common in the Netherlands what the penal consequences must be.
The suspects' arrest is one of the possibilities, but this will
have to be assessed for each separate case. All this, of course,
shall not affect the (civil-law) possibilities of setting further
conditions through rights of
access."
Analysis
The Ministers therefore maintain their position that Dutch law
offers sufficient guarantees to take action against ambush
marketing, namely on the basis of intellectual property rights,
unfair competition and tort. In the event of copyright and/or
trademark-right infringement, the right holder may also report to
the police and in that case the judicial authorities may decide to
prosecute. Does this also mean that you can get into trouble by
wearing, for instance, a Bavaria Dutch Dress during the
World Cup 2018/2022?
The answer is no. In the article 'Ambush marketing: wearing
the Dutch Dress would be permitted in the Netherlands'
that has been published on our legal weblog
MediaReport, my colleagues have given an
extensive explanation on this: Actions against an individual fan
will not be taken quickly if he is wearing his own clothes in a
Dutch soccer stadium. If these clothes contain trademarks of
parties who are not official sponsors, this cannot be prohibited
that easily. Wearing your own clothes has an element of personal
freedom of expression, which is a basic right that may only be
limited in special circumstances. Even if the World Cup is
sponsored by Adidas, you can always wear your Nike shoes to a
soccer match. Do not forget that also in the field there are many
soccer players who are playing in their shoes sponsored by Nike and
in their sponsored outfits. In the stadium FIFA may set
requirements in the conditions pertaining to the tickets, but if
the fans cannot wear the clothing of their own choice anymore, this
would go too far. Therefore, wearing the Dutch Dress in the stadium
would simply be allowed in the Netherlands. On the other hand, a
company that knowingly and willingly and - in the words of the
Dutch court, 'deviously' - tries to circumvent the ban on
advertising in a stadium, can be proceeded against under Dutch law.
This concerns only extreme cases and does not require an amendment
of the law (click
here for the
article).
Conclusion
The Dutch government maintains its earlier position. Therefore,
no new regulations against ambush marketing will be introduced;
current law suffices. In the event of ambush marketing,
criminal-law sanctions may only be imposed after infringement of
certain intellectual property rights. Wearing clothes of your own
bearing the trademark of a party that is not an official sponsor
will not constitute trademark infringement. Therefore, if the
Netherlands will indeed host the World Cup tournament in 2018/2022,
the Bavaria babes can delve up their Dutch dresses once again.