Official sponsors of the World Cup call foul as yet another brand owner successfully pulls off an ambush marketing stunt. This week two Dutch women were arrested for organising 36 girls to appear scantily clad in orange to promote the Dutch brewery, Bavaria. Perhaps the brewery were hoping of a repeat of four years ago at the World Cup in Germany when scores of Dutch men were ordered to remove orange lederhosen bearing the name of Bavaria.

This event though is another example in a long list of companies making the most of the tournament’s huge marketing appeal. While official sponsors must of course be protected from such blatant ambush marketing, there is a concern that calls for yet more legal restrictions are disproportionate. (See our full Ad Guide on Ambush Marketing ). Existing law means that stunts such as the ones mentioned above can be stopped. The mere fact that 36 women identically dressed in orange managed to enter the stadium is a failure on the part of the organisers and not the law. Over-reacting and arresting the women in this case is also seen by consumers as heavy handed and only draws attention to the ambush marketer. However, being branded as an ambush marketer seeking to exploit rights without contributing to a major event is also not a good result for most reputable brands either.

However, more worrying for freedom of commercial expression and competition, is the alleged claim that FA sponsor, Mars, is threatening to sue Nestle over the current football-themed Kit Kat campaign. It is hard under UK law to see how such a case could succeed, though it is not helpful that Marketing Magazine suggest that Kit Kat has successfully hijacked the World Cup. Nevertheless it is difficult to see how a claim for passing off could be successful in the UK. Kit Kat has not used any of the World Cup logos or protected marks, nor does the campaign claim directly or indirectly that Kit Kat are sponsors. If such a marketing campaign were attempted however in the run up or during the 2012 Olympics, then the London Olympic Association Right  (LOAR) would mean LOCOG could stop the advertisements by virtue of a mere “association” with the event.

FIFA has no such association right in the UK and, indeed, I would argue it should not have such a right. Creativity should not be entirely prevented nor freedom of commercial expression stifled. Again I argue that marketers do not benefit from over zealous enforcement of such rules, and indeed arming major event holders with too much power merely leads to increased cost of sponsoring such events.

The undisputed fact is that sponsorship is big business. The 2010 tournament will reap FIFA a phenomenal $1.6 billion according to news sources. Why does this matter? Because the more rights that are granted to event holders the greater the cost of sponsorship will be for brand owners. Of course it is an expensive business staging these world sporting events, and huge sums are ploughed back into grass roots sport but there has to be a balance between freedom of commercial expression and the rights of smaller local business to benefit from such events versus the rights of multi national sponsors and the major events holders.

The cynical amongst us may say the threat to sue Nestle by Mars, and any inevitable failure in the UK, at least, of such action, will allow FIFA to demand an ‘association right’ before any tournament in London in 2018, should London succeed in its bid.  When the author of this article lobbied for changes to the London Olympic Association Right during the passage of the Olympics Bill in 2006, marketers were reassured by government that the Olympics was a special sporting event (a clean venue tournament) and that no other sporting event would warrant a change to the intellectual property laws of the UK. However the Glasgow Commonwealth Games has also been granted additional protection of such an “association right” for its sponsors, and the fear is that London will cave into demands by FIFA for such a right in any host city contract for the 2018 Tournament.

As soon as the World Cup closes it is inevitable also that eyes will turn to the Olympics in London in 2012. Many businesses will be surprised to find that the bonanza of marketing associated with the World Cup will not be possible in relation to the Olympic and Paralympic Games. Marketers need to beware,  as LOCOG (the London Organising Committee of the Olympic Games) will clamp down on offenders. See Ad Guide to the do’s and don’ts for 2012 Olympic Games.