Introduction

In the dynamic world of sports, image rights have become a vital component of a sports team's identity and revenue stream. Image rights encompass the commercial value associated with a team's name, logo, and the likenesses of its athletes and celebrities. In South Africa, as in many other jurisdictions, the protection of these image rights is crucial to maintaining a sports team's brand integrity and financial viability. However, these rights face a significant threat in the form of, amongst other things, ambush marketing – particularly so when major sporting events (like a Rugby World Cup) are taking place. This article delves into the concept of image rights for sports teams within South African law; explores the threats posed by ambush marketing, and examines the various options available to sports teams to take steps to safeguard their image rights.

Image Rights: A Precious Asset

Image rights represent more than just a logo, a name or a jersey; they are the embodiment of a sports team's identity. For sports teams, image rights serve several essential functions.

First, image rights establish and maintain a team's brand identity. Think of the iconic jerseys of teams like the Springboks or Kaizer Chiefs; they are instantly recognisable symbols of their respective teams. This visual identity not only instils a sense of pride and loyalty in fans but also attracts sponsors and partners eager to be associated with a winning or “name-recognised” brand. The powerful connection between a sports team and its supporters is hinged upon these image rights, which extend to the team's name, colours, mascots, and even the collective image of its players.

Secondly, image rights are a substantial source of revenue for sports teams. The commercial exploitation of image rights through sponsorships, endorsements, and licensing deals can significantly boost a team's financial resources. Consider the endorsements that famous athletes like Caster Semenya or Siya Kolisi secure due to their association with their respective teams and their outstanding performances on the track or field. These financial gains not only benefit the athletes but also contribute to the overall success and sustainability of the teams themselves.

Lastly, image rights provide a crucial legal framework to protect against unauthorised use and potential dilution of the team's brand. Trademark registration, for example, grants teams exclusive rights to use their colours, logos and names for commercial purposes. This legal protection ensures that third parties cannot exploit the team's image for their gain or mislead consumers by creating confusion about supposed sponsorship or affiliation. In essence, image rights are the shield that guards against the misappropriation of a sports team's hard-earned reputation, successful product and brand value.

Ambush Marketing: The Threat to Image Rights

While image rights offer substantial benefits to sports teams in South Africa, they face a persistent and continually evolving threat, in the form of ‘ambush marketing’. Ambush marketing is a clever strategy employed by brands to create an association with a sporting event without obtaining official sponsorship rights. It is loosely defined as, ‘an attempt by an unauthorised party to take advantage of the high media profile of an event, brand, team or individual, through deliberate, and calculated, marketing activity and without paying any licence or sponsorship fee, at the expense of another company's official association with the event, team or individual’. It can manifest in various forms, each presenting unique challenges to the protection of a sports team's image rights.

One form of ambush marketing is "Ambiguous Advertising." In this tactic, brands employ language or imagery in their advertisements that subtly link them to a sports team/event without explicitly stating any direct sponsorship or affiliation. For example, a beverage company might craft an ad campaign that uses sports-related terms, symbolic colours, or symbols without explicitly declaring sponsorship. While this may not outrightly violate trademark laws, it can mislead consumers into believing the brand has an official association with the team or event.

"Coattail Marketing" is another manifestation of ambush marketing. In this strategy, brands attempt to capitalise on the popularity and excitement generated by a sporting event without acquiring official sponsorship status. They launch marketing campaigns centred around the event, often leveraging its buzz and public interest. By doing so, these brands seek to ride the “coattails” of the event's popularity, drawing attention and business without making the financial commitment of becoming an official sponsor. This practice can be detrimental to the team and its legitimate sponsors, as it dilutes the exclusivity and benefits that official partnerships provide and which the teams have sold as sponsorship inventory to the paying brands.

"Ambush by Association" is a tactic where brands strategically position themselves near sports venues or use social media to create an association with the event. They may set up promotional activities or advertising campaigns in close proximity to the event's location, giving the impression of a connection with the team or competition (take for example the 2010 Ryder Cup where the then well-known betting chain, Paddy Power, had to remove a 270-foot unofficial promotional sign placed outside the boundary of Celtic Manor Golf Course in Wales as it was an unlawful association to the event) On social media platforms, brands can craft content that cleverly links their products or services with the event, potentially reaching a massive audience. This form of ambush marketing can mislead fans and consumers, making it challenging for the team to protect its image rights and maintain the integrity of its brand. The threat of this form is magnified when one considers the exponential rate at which misleading posts or content can be liked and reshared.

To combat these ambush marketing tactics effectively, sports teams in South Africa need to be proactive and vigilant. The legal framework, including trademark law, copyright law and contractual agreements, can be powerful tools in safeguarding image rights.

The Legal Landscape in South Africa

In the context of South African law, the protection of image rights for sports teams is anchored in a multifaceted legal framework that primarily encompasses trademark law, copyright law, and contractual agreements. These legal instruments form the backbone of image rights protection for sports teams operating within the nation.

Trademark Law

One of the most potent tools for safeguarding image rights is trademark law. Sports teams in South Africa can register their logos, colours, names, and associated symbols as trademarks (some countries even allow smell or sound registration). This process confers exclusive rights upon the teams, allowing them to use these marks for commercial purposes without the risk of infringement. Trademark registration establishes a solid legal foundation, making it considerably more challenging for unauthorised parties to exploit the team's image for their gain. It is an essential cornerstone in the defence of image rights. By relying on a registered trade mark, the trade mark proprietor could restrain the use of that mark or a confusingly similar mark in relation to such services. Similarly, under the law of passing-off, if the symbol of an event can be shown to enjoy a substantial repute, with the result that the use of that symbol, or a confusingly similar symbol, by another party causes members of the public to think that the goods or services are connected to the event, this misleading activity could be restrained.

In 2001 the Trade Practices Act 76 of 1976 was amended introducing a new provision, whereby a representation by a marketer who holds out, implies, or suggests a contractual connection or association between them and a sponsored event, or the person sponsoring the event, is rendered unlawful.

The Merchandising Marks Act

In 2002, the South African legislator, by way of the Merchandise Marks Amendment Act 61 of 2002 (amending the Merchandise Marks Act 17 of 1941 (“MMA”)), adopted a novel approach for protection against ambush marketing, by introduced the concept of ‘acting unlawfully by abusing the right to use a trademark’.

The law introduced by the MMA addresses the question of the prohibition of ambush marketing by “intrusion” (a form of ambush marketing where the ambush marketer does not seek to suggest a connection with the event but rather to give their own brand or other insignia exposure through the medium of the publicity attracted by the event and without the authorisation of the event organiser), founded on the principle of abuse of rights. The deliberate use of a brand in relation to a sponsored event, without the authority of the event organiser, in a manner which is calculated to achieve publicity for that brand and thereby to derive gratuitous promotional benefit from the event, is rendered unlawful.

The 2002 amendment introduced the definition of ‘event’ into the MMA. An ‘event’ is defined to mean any exhibition, show, or competition of a sporting, recreational or entertainment nature which is held in public, has the potential to attract the attention of the public or to be newsworthy, and is financed or subsidised by commercial sponsorship. An ‘event’ includes any broadcast of the a foregoing. A ‘protected event’ means an event which has been designated as such by the Minister of Trade and Industry in terms of the abuse of trademark provision.

The Minister of Trade and Industry may, after investigation and proper consultation, designate an event as a ‘protected event’, by means of a notice in the Government Gazette.

While an event is a protected event it is unlawful to use a trademark in relation to that event in a manner which is calculated to achieve publicity for that trademark and thereby to derive special promotional benefit for it from the event without obtaining prior authority of the organiser of such event. The concept of ‘use of a trademark’ includes any visual representation, or any audible reproduction, of the trademark in relation to goods or in relation to the rendering of services or using that mark in promotional activities in any way which, directly or indirectly, is intended to be brought into association with or to allude to an event.

Recently, the 2022 Rugby World Cup 7’s tournament and the 2023 Netball World Cup both held in Cape Town, were designated as protected events by the Minister of Trade and Industry, enjoying protection by the MMA.

Copyright Law

While copyright law predominantly pertains to creative works such as literature, music, and art, it also extends its protective reach to items like logos, designs, and promotional materials. By securing copyright registration for these assets, sports teams can add an extra layer of protection to their image rights. This extension of copyright law underscores the importance of these intellectual property rights in the realm of sports, further emphasising their significance.

Counterfeit Goods Act

Where an ambush marketer infringes a registered trademark, infringes copyright, or forges a prohibited mark under the MMA, action can also be taken against them under the Counterfeit Goods Act 37 of 1997. This Act renders the forging of the merchandise property a criminal offence and imposes the same penalties as the Copyright Act. The Counterfeit Goods Act contains procedural provisions which are of great assistance to the owner of the property being forged and is, in principle, an effective tool for dealing with ambush marketing by forgery.

Contractual Agreements

Sports teams can bolster their image rights protection through contractual agreements. By entering into well-crafted contracts with athletes, sponsors, and partners, teams can explicitly define and safeguard their image rights. These agreements spell out the terms and conditions governing the use of the team's image, delineating who can use it and for what purposes. Teams may even place obligations on sponsors to assist in the event of any unauthorised usage. In essence, contractual agreements serve as legally binding shields, ensuring that all stakeholders are on the same page regarding the exploitation of image rights.

Options for Protecting Image Rights

To effectively shield their image rights from the pervasive threat of ambush marketing, South African sports teams and brands have an array of strategies at their disposal.

Vigilant Monitoring

Maintaining vigilant oversight is paramount. Teams should diligently watch for any signs of ambush marketing, whether it manifests in the form of ambiguous advertising, coattail marketing, or ambush by association. Early detection of such instances enables teams to take swift, proactive action to mitigate potential damage to their image rights. Ordinarily, this function may sit within the marketing department of a sports team – given that department’s familiarity with social media.

Legal Action

In cases where unauthorised use or ambush marketing occurs, resorting to legal action may become necessary. This could involve sending cease and desist letters to offending parties, seeking urgent interim or interdictory relief to halt further unauthorised activities, or pursuing damages (oftentimes of a punitive nature) for trademark or copyright infringement. Legal action serves as a potent deterrent and a means to enforce the team's image rights.

Educating Stakeholders

Teams can embark on an educational campaign aimed at enlightening athletes, sponsors, and partners about the paramount importance of protecting image rights. When all stakeholders understand the value and legal implications of image rights, they are more likely to actively contribute to their safeguarding, fostering a collective effort to combat ambush marketing.

Official Partnerships

Establishing official partnerships with reputable brands can help create a clear distinction between authorised sponsors and potential ambush marketers. These partnerships not only enhance the team's financial stability but also reinforce the legitimacy of official sponsors, reducing the allure of unofficial affiliations.

In summary, South African sports teams have a robust legal framework at their disposal to protect their image rights. By leveraging trademark and copyright laws and utilising carefully crafted contractual agreements, they can fortify their position. Coupled with vigilant monitoring, legal action, when necessary, stakeholder education, and official partnerships, these teams can navigate the ambush marketing minefield while preserving the integrity of their image rights in a highly competitive sports landscape.

Conclusion

In South Africa, like so many other sporting-mad countries, image rights are a cornerstone of a sports team's identity and financial success.

None of the above remedies, whether individually or in combination, provides the total answer. Event organisers and sponsors can be left feeling helpless when it comes to dealing with ambush marketing. A skillful ambush marketer can usually do so without running the risk of falling foul of the law.

For the major part, the chief value of these remedies is of a deterrent nature but in many instances the profits to be made or the benefits to be gained from ambush marketing far outweigh the possible penalties which may follow at some stage after the event.

With the advent of amendments to the legislative position in South Africa, sponsors and brands have a wide variety of options available to them, but it is important that they act swiftly and with the appropriate plan of action to arrest the ambush marketing campaign before it can gain legs.

Protecting the rights of sponsors and brands in this space is essential, given the ever-present threat of ambush marketing (and the benefit to competing brands to test the limits of the law). By understanding the legal framework, staying vigilant, and taking proactive measures, sports teams and event organisers can successfully safeguard their image rights and continue to thrive in an increasingly competitive sports landscape for the attention of fans and the Rands of sponsors. In the battle against ambush marketing, the law becomes the team's strongest defender, ensuring that their image rights remain intact, and their brand continues to shine brightly in the world of sports, even if they may presently be in the “City of Lights.”

DISCLAIMER: The information provided in this article is for general informational purposes only and should not be construed as legal advice. It is not a substitute for consulting with a qualified legal professional. The content is based on general knowledge and research up to the publication date and may not reflect the most current legal developments. No attorney-client relationship is formed by reading this article. Always seek the independent advice of a legal practitioner regarding your specific legal concerns.