However, ambushed competitors, event organisers and the affected event or individual or team may suffer damaging effects and their potential to attract future sponsors may be compromised.

Aggrieved parties have generally sought redress through the more traditional forms of intellectual property protection such as passing off, trademark infringement or copyright infringement.

Intellectual property protection

The key elements of these rights are:

-       Passing off: the event organiser  in order to start an action in passing off would need to show that it has established a reputation or goodwill in the event in question;  and that the third party has made a misrepresentation which has led to confusion in the minds of the public as to whether there is a connection with the event organiser; and that the event organiser has suffered or is likely to suffer damage.

-       Registered trademarks: where the event organiser has a registered trademark for the name of the event itself, or logos or expressions associated with it, and that trademark or a similar mark has been used by a third party in its advertising, the event organiser may be able to bring action against the third party for trademark infringement.

-       Copyright: if the event organiser has created a logo to represent the event and this logo is sufficiently original to attract copyright, then if the ambush marketer reproduces the logo without authorisation then it constitutes copyright infringement.

-       Registered designs: similarly, if the logo or mascot is sufficiently novel and has sufficient individual character, it may be possible to register it as a design. Any unauthorised replication or dealing in articles using a design that does not produce a different overall impression on an "informed user" is an infringement.

It has been reports that when Domino's Pizza, which was not an official sponsor of UEFA's Euro 2004, ran a promotion which made reference to Euro 2004 and offered tickets to the final as a prize in a competition, UEFA issued proceedings in the High Court against it under a number of heads of claim, one of which was passing off.  

Generally, official sponsors of events will take actions against any infringers to oblige with their obligations under the relevant sponsorship agreement as the relevant intellectual property rights usually vest in them. Depending on the terms of the sponsorship or licence agreement between the parties, the sponsor, as licensee of any relevant trademarks or copyright, may be joined as a party in the proceedings and may be entitled to share in any damages, account of profits or costs recovered.  For example, a trademark licence typically provides that a licensee must co-operate with the trademark owner in infringement proceedings, which the trademark owner undertakes at its own cost, but that the licensee is not entitled to any resulting damages, costs or an account of profits.

If such actions are successful, event organisers, depending on the facts of the individual case, are generally awarded damages on the basis of either:

·         Loss to the event organiser. This is generally calculated by looking at what the ambush marketer would have been obliged to pay as a licence fee, if it had obtained a licence from the event organiser.

·         An account of profits. That is, the ambush marketer must account to the event organiser for the profits it has obtained by means of its ambush marketing.

However, in assessing damages, the court is likely to take into account the dilution of the commercial value of the event.

In addition or as an alternative to damages, event organisers may seek an injunction to prevent reoccurrence of the infringement. An application for an interim injunction may be against a named ambusher or possibly against persons unknown. This type of injunction has been previously used in the UK in copyright infringement cases (for example, the publication of an infringing book) and could also be used in the context of ambush marketing.