A topic constantly going back to the agenda, especially in years of major sporting events such as the Olympic Games, is the ambush marketing and intellectual property. But, after all, what is this practice and what is the relationship with the Law, more to the point, with the subject that addresses to legal protection and acknowledgment of authorship of works of intellectual production?

The ambush marketing is a parallel advertising that raises and is related to or somehow associated with sports or cultural events without proper authorization. The advertising is a source of revenue for the organizers of these events, who should be properly compensated for the association credits that they offer to the brands, after all, these developments demand great efforts. In general, the brands that buy these spaces are acknowledged as sponsors and are entitled to use the official symbols created to disclose the event. Some companies, even without investing in these spaces, want to take advantage of the interest they arouse and the appeal they have among the public, and end up resorting to opportunistic and cunning practices.

There are two types of ambush marketing: by association and by intrusion. In the ambush marketing by association, the non-sponsoring brand uses the name, brand, image, or even the mascot of the event to be advertised, make the consumer believe he /she is participating in the event in an official way, and obtain economic advantage from this. In the ambush marketing by intrusion, the opportunistic company carries out promotional activities at the site of the event, inducing the public to believe that it has the approval of the organizing committee.


The ambush marketing in the Brazilian legislation

There is still no specific legislation on ambush marketing in Brazil. The General Law of the World Cup (Law 12.663/12), which provides for measures relating to the FIFA Confederations Cup 2013 and the FIFA World Cup 2014, both held in Brazil, brought a legal definition for the term and the appropriate penalties, but with exclusive application to the events mentioned. 

Regarding a more comprehensive legislation on the subject, there is the Senate Bill 67/2017, which is still pending, and defines ambush marketing as a crime against the intellectual property of sports organizations. There are, however, other resources to be considered in the fight against ambush marketing in the judicial and administrative spheres. 

In the administrative sphere, there is the Conar – Código do Conselho Nacional de Autorregulamentação Publicitária-, which “sentences improper or illegitimate advertising profits obtained by ‘piggyback’ and/or ambushing other people’s investments. Even as a self-regulatory agency, Conar has credibility with the Judicial Branch and its code is an important parameter.

Besides the ethical guidelines established by the Conar Code, another important document for guidance on the subject is Law 9.279/96, which regulates rights and obligations relating to industrial property, especially with respect to unfair competition.

There is also the Consumer-Protection Code – Código de Defesa do Consumidor, which can also support court decisions on ambush marketing, as there are provisions in the document addressing the abusive or deceptive advertising.

As it can be seen, ambush marketing and its relationship with intellectual property should be observed with caution and with the support of experts. Not everything is ambush marketing in times of major cultural and sporting events, and there are certainly legal and creative ways for non-sponsoring companies to participate in the conversation and social interest around these events to promote their brands, but attention and guidance are needed to not commit in violations and set a precedent for irreversible harm to their own reputation. 



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