Framing ambush marketing as a legal issue: An Olympic perspective

Dana Ellis, Teresa Scassa, Benoit Seguin *

University of Ottawa, Canada

1. Introduction

Ambush marketing has been part of the dialogue and scholastic inquiry surrounding sponsorship for more than 20 years.A more recent addition to this dialogue and the practical reality of sponsorship has been the enactment of new laws tocombat the perceived threat of ambushers (Ellis, Gauthier, & Seguin, 2011; Grady, McKelvey, & Bernthal, 2010; Scassa, 2008,2011). Since the 2000 Olympic Games in Sydney, major international sport properties such as FIFA World Cup and theOlympic Games have strongly advocated for host country governments to pass special legislation explicitly aimed atprotecting the goodwill associated with the event. Clearly, the practice and treatment of ambush marketing have changedand require re-examination in light of the ever-increasing sponsorship value of the major sport properties and the newmeasures being used to fight against ambush marketing.

In the case of the Olympics, the ultimate responsibility to enhance the Olympic brand and to provide value to commercialpartners remains with the International Olympic Committee (IOC), National Olympic Committees (NOCs), OrganizingCommittees (OCs) and sponsors. Yet, as discussed above, governments are now being asked to play an active role inprotecting the commercial interests of the IOC by passing event-specific legislation. This was the case in Australia, Greece,Italy and Beijing. The most recent examples include Canada, where the Olympic and Paralympic Marks Act was enacted as away to protect the Olympic brand and control ambush marketing activities for the Vancouver Organizing Committee for the2010 Olympic and Paralympic Winter Games (VANOC). In the United Kingdom, the London Olympic Games and Paralympic

Games Act was enacted for similar purposes in the lead-up to the London 2012 Games. The purpose of this paper is to examineissues related to framing ambush marketing as a legal issue as opposed to a predominantly business issue. It begins with asurvey of the trends in ambush marketing research up to this point. This is followed by a discussion of the consequences ofplacing ambush marketing in such a rigid legal context, from both legal and business management perspectives. The paper

Sport Management Review 14 (2011) 297–308

A R T I C L E I N F O

Article history:

Received 19 July 2010

Received in revised form 18 February 2011

Accepted 20 February 2011

Keywords:

Ambush marketing

Legislation

Trademarks

Brand management

Olympic Games

Olympic marketing

Vancouver Winter Olympic Games

A B S T R A C T

This paper examines the emerging trend of host countries using legislation to protect the

Olympic brand and control ambush marketing. More specifically, it will discuss Canada’s

Olympic and Paralympic Marks Act in depth. Issues related to framing ambush marketing as

a legal issue as opposed to a business issue are examined. The consequences of placing

ambush marketing in a legal context are considered from a legal and a business

management perspective.

� 2011 Sport Management Association of Australia and New Zealand. Published by

Elsevier Ltd. All rights reserved.

* Corresponding author at: 125 University, Ottawa, ON, Canada K1V 6N5. Tel.: +61 3 562 5800x4641; fax: +61 3 562 5149.

E-mail address: bseguin@uottawa.ca (B. Seguin).

Contents lists available at ScienceDirect

Sport Management Review

jo ur n al ho mep ag e: www .e lsev ier . c om / lo cate /s m r

1441-3523/$ – see front matter � 2011 Sport Management Association of Australia and New Zealand. Published by Elsevier Ltd. All rights reserved.

doi:10.1016/j.smr.2011.02.002

concludes with suggestions for new research directions in light of the shifting paradigm for addressing issues of ambushmarketing.

2. Review of literature

2.1. Ambush marketing

Previous literature in ambush marketing has been, for the most part, descriptive and can be argued to represent researchin five central areas: (a) describing the practice and developing a definitional construct, (b) looking at concerns aroundconsumer perception, (c) judicial precedent and description of legalities, (d) examining ethical issues, and (e) strategies forfighting and preventing ambush marketing. Each of these areas will be briefly examined below.

As with any new practice, the first area of research in ambush marketing which must be covered is the development of adefinition and outlining of the concepts and processes involved (cf. McKelvey & Grady, 2008; Meenaghan, 1998; Payne,1998; Sandler & Shani, 1989). The first such examination is often acknowledged to have been put forth by Sandler and Shaniin 1989 who described ambush marketing as ‘‘a planned effort (campaign) by an organization to associate itself indirectlywith an event in order to gain at least some of the recognition and benefits that are associated with being an official sponsor’’(p. 11). However it can be argued that there is an increasing tendency towards uncertainty and confusion in defining thepractice (cf. Crow & Hoek, 2003; Grady et al., 2010; McKelvey & Grady, 2008). While many condemn it, others have arguedthat it is simply a manifestation of aggressive marketing strategies within a highly competitive environment (cf. Brewer,1993; O’Sullivan & Murphy, 1998). Research in this area has also sought to outline specific ambush marketing opportunities,strategies and tactics (cf. Crompton, 2004; Crow & Hoek, 2003; Meenaghan, 1994; Preuss, Gemeinder, & Seguin, 2008) andprovide examples of previous campaigns (cf. Graham, 1997; Hoek & Gendall, 2002) in order to provide a clearer picture ofwhat may qualify as ambush marketing.

In examining questions around consumer perception the evidence is seemingly contradictory. While some scholars havefound evidence that consumers perceive ambush marketing to be an unacceptable practice (Seguin, Lyberger, O’Reilly, &McCarthy, 2005), others have found that, for the most part, consumers are indifferent to the practice, showing general apathytowards its use as a strategy or tactic (Lyberger & McCarthy, 2001; Sandler & Shani, 1993; Shani & Sandler, 1998).Alternatively, Moorman and Greenwell (2005) found that consumer perception was highly dependent on the type of ambushactivity taking place. They noted that consumers felt only those strategies using protected Olympic symbols were entirelywrong, while other types of ambush were not. One thing that can be agreed upon, however, is that consumers currently lackknowledge about the practice and are generally confused by sponsorship categories (Lyberger & McCarthy, 2001; Sandler &Shani, 1993; Seguin, Lyberger, et al., 2005; Shani & Sandler, 1998). This is potentially vital as Meenaghan (1998)demonstrated that conflicting results on consumer perception are formed based on the level of understanding and confusionexperienced by consumers. Those consumers, who had knowledge of the benefits of sponsorship, as well as the potentialnegative impacts of ambush marketing, were much more concerned by the practice then those who were unaware(Meenaghan, 1998).

Increasingly, ambush marketing has become a subject of interest from a legal scholarship perspective. Most of theliterature in this area offers a depiction of the practice from legal perspectives rather than empirical or theoreticalfindings. Many articles have examined what legal issues can be raised when looking at the practice of ambushmarketing, on both sides of the argument, those who are ambushed and those who ambush (Bhattacharjee & Rao, 2006;Hoek & Gendall, 2002; Moorman & Greenwell, 2005; Scassa, 2008). Various articles also examine the legal recoursecurrently available to protect sponsors under already existing policies, such as contract law, trademark and copyrightprotection (Bean, 1995; Crow & Hoek, 2003; McKelvey, 2003; McKelvey & Grady, 2008). Still others seek to outline thoseways in which ambush marketing is permissible under the law (Nish, 2003) and how ambushers can avoid legalconsequences (Bean, 1995). Finally scholars have attempted to look back and evaluate the success of early legislativemeasures to address ambush marketing legislation (Bhattacharjee & Rao, 2006; Kendall & Curthoys, 2001; McKelvey &Grady, 2004, 2008) and look forward with an in-depth analysis of current legislation, examining the level of protectionoffered, the necessity of the legislation and the potential impact of such measures (Grady et al., 2010; McKelvey &Grady, 2008; Scassa, 2008). Most recently there has been a trend towards examining the various stakeholders involvedin Olympic marketing with reference to how legislation may impact them (cf. Ellis et al., 2011; Grady et al., 2010). Whenspecifically examining Canadian National Sport organizations (NSOs), Ellis et al. (2011) found some key impacts and/orbenefits felt by NSOs in relation to the Olympic and Paralympic Marks Act, 2007. The Act was valued for its use as aneducational tool within their organizations as well as its potential to enhance the stability of sport from a broaderperspective (Ellis et al., 2011). While on the negative side it was felt that such restrictions increase the difficultyobtaining self-generating revenue from their own sponsors, increase animosity between stakeholders rather thancooperation, and that the majority of tangible benefits were to the IOC and VANOC rather than the NSOs (Ellis et al.,2011). Grady et al. (2010) similarly examined anti-ambush marketing legislation from Beijing, Vancouver, and Londonto scrutinize the balance attainted between protecting the rights of stakeholders, namely the IOC and local businessesand city residents. Specifically the authors discussed whether such legislation meets the mandate of governments toprotect commercial freedoms and ensure a fair marketplace in their country, whether it could be argued that there is aviable marketing and/or economic rationale for such measures and the specific practical business repercussions of anti-

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ambush marketing legislation (Grady et al., 2010). Among other things they contend that the creation of a ‘‘right ofassociation’’ tips the balance towards protecting the rights of the IOC over those of other stakeholders (Grady et al.,2010).

The fourth theme evident in the ambush marketing literature is a discussion of ethical issues related to the practice. Incomparison to the other themes discussed, the literature on the ethics of ambush marketing is limited but it is frequentlymentioned as an important issue. The most in-depth look at this topic comes from O’Sullivan and Murphy (1998) whoexamined ambush marketing from four ethical theory perspectives: (a) utilitarianism, (b) duty-based ethics, (c) stakeholderanalysis, and (d) virtue ethics. They contend that in each case, the argument can be made both for and against theclassification of ambush marketing as unethical. This classification is dependent on both the perspectives from which theargument is being made, as well as the specific ambush strategy being examined (O’Sullivan & Murphy, 1998). O’Sullivan andMurphy’s position is aligned with the generally adopted stance among academics in the dispute over the ethics of ambushmarketing. It is regularly noted that the classification of ambush marketing as ethical or unethical is an ongoing debate withthe argument on both sides exclusively dependent on the position of the arguer as either the ambusher, or the ambushed(Crompton, 2004; Meenaghan, 1994). Alternatively, in an empirical analysis, Seguin, Lyberger, et al. (2005) used aninternational consumer perspective on the debate over ambush ethics. Their findings indicated that 43.4% of respondentsbelieved the practice to be unethical, with Canadians (50%) showing the greatest distaste for ambush marketing. However,these results should be interpreted with caution since the majority of consumers in the study were not aware of ambushmarketing. Hence, the practice was defined as an association with the Olympics without paying for the rights to do so (e.g.the practice of associating with the Olympics without being an official sponsor is unethical, or; it is fair for companies toassociate themselves with the Olympics without being Official Sponsors). These statements may have led respondents toview ambush marketing in a negative way. Interestingly, in another study, it was found that TOP sponsors believed thatconsumers view it as a business issue, not an ethical one (Seguin & O’Reilly, 2008). In fact, ‘‘the general public views it as twobig corporations fighting it out and they do not see or identify with ambushing: They just see that as everyday business. . .thebottom line is that many consumers just do not care (Top Sponsor)’’ (Seguin & O’Reilly, 2008, p.70).

Fighting and preventing ambush marketing is the fifth and final major area of study in ambush marketing and the mostpertinent for the purposes of this paper. The literature clearly shows (c.f. Burton & Chadwick, 2009; Crow & Hoek, 2003;Farrelly, Quester, & Greyser, 2005; McKelvey & Grady, 2008; Meenaghan, 1996; Seguin & O’Reilly, 2008; Townley,Harrington, & Couchman, 1998) that the issue of ambush marketing can be addressed by various business means. Numerousstrategies are either described or suggested as ways to prevent, combat, or chastise ambushing marketing and those whopartake in it. To begin, it is frequently suggested that a single, controlled sponsorship program is vital in avoiding ambushmarketing as it helps negate clutter and the ambushing of major sponsors, not just by competitors, but also by other sponsorswho have paid for lesser rights (Crow & Hoek, 2003; Meenaghan, 1996; Seguin & O’Reilly, 2008). Secondly, a public relationsand/or media program around ambush marketing is recognized as serving two important purposes. First, it allows an event’sgoverning body and sponsors to educate consumers about the sponsorship and ensure they recognize ambush marketingwhen they see it (Crow & Hoek, 2003; McKelvey & Grady, 2008; Seguin & O’Reilly, 2008; Townley et al., 1998). Second, itprovides an outlet for property rights holders to make a public example of the ambusher in hopes of offsetting the benefitsthey have received via the ambush, with bad publicity (McKelvey & Grady, 2008; Meenaghan, 1996). VANOC used thisstrategy a few months prior to the 2006 Winter Games, when Esso, a long time sponsor of Hockey Canada, used a creative andeffective thematic promotion titled ‘Cheers for Canada in Torino, Italy’ (O’Reilly & Seguin, 2009). This promotional campaignplayed on Canadians’ passion and strong emotional connection to hockey and indirectly to the Olympic Winter Games.Responsible for protecting the Olympic brand in Canada until 2012, VANOC quickly denounced the promotion and organizeda press conference with the collaboration of a well-known Olympian. It was ultimately successful in stopping the Esso’spromotion (O’Reilly & Seguin, 2009).

A third strategy used to minimize the impact of ambush marketing is through proper leveraging and activation of thesponsorship by the official sponsors. Numerous articles note the importance of investment in the sponsorship beyond theinitial cash outlay in order to ensure that sponsors receive all the advantages of the association and to create a clearconnection in the consumer’s mind between the property and the sponsor (Crow & Hoek, 2003; Farrelly et al., 2005;Meenaghan, 1996; Seguin & O’Reilly, 2008). The control and management of broadcast rights sales is the fourth majorstrategy (Crow & Hoek, 2003; Meenaghan, 1996; Seguin & O’Reilly, 2008; Townley et al., 1998). A key ambushing marketingstrategy is sponsorship of the official broadcast by non-official sponsors. Including broadcast rights in the sponsorshippackage may increase the price of the package and decrease the money to be gained off broadcast rights but can be viewed asnecessary in protecting against ambush marketing.

Building on these approaches, Seguin and O’Reilly (2008) presented a comprehensive brand management model tomanage ambush marketing in Olympic sport based on interviews with various stakeholders. They assigned accountabilityfor each identified strategy in the management model to either the IOC, NOCs, sponsors or any combination of these threestakeholders. From their research three additional methods of fighting ambush marketing through brand management wereidentified. The first is a need to increase the marketing expertise of NOCs. Many lack basic knowledge and competencies inmarketing which in turn affects the uniformity and coherence of the worldwide Olympic brand and the ability of organizersto protect it (Seguin & O’Reilly, 2008). The second is the creation of a successful sponsor recognition program. Like leveragingand activating, a well executed recognition program will help ensure the public can correctly recognize the contribution ofsponsors to the Olympic Movement and differentiate between official sponsors and ambushers. The third is to leverage the

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intense competition between cities (and countries) bidding to host the Olympic Games by demanding new laws aimed atprotecting the brand. The latter has been used successfully as demonstrated by the Olympic and Paralympic Marks Act for the2010 Winter Olympic Games.

While looking at each of these strategies, however, a bigger picture begins to emerge. It is clear that the key elementwhich can be taken from this approach is that the stakeholders who stand to benefit the most from brand and sponsorprotection can, and should, take individual and collective responsibility for ensuring said protection through sound businesspractices. Despite this however, there has recently been a move towards the use of anti-ambush marketing legislation as theultimate form of brand protection.

2.2. Legislation and ambush marketing

Trademark law has long been relied upon by brand owners to protect the goodwill associated with specific marks,whether they are names, slogans, designs, or a combination of these. Trademark owners are protected against the use of theirmarks by others, as well as against the use of confusing marks (Morcom, Roughton, Graham, & Malynicz, 2005; Scassa, 2010).The laws protecting registered trademarks, however, are generally not helpful in ambush marketing cases, as the ambushmarketer generally avoids the use of the trademarks of either the sponsoring competitor or the event organizers. Rather,association with the event is created by more oblique references or juxtapositions (Scassa, 2011).

In common law jurisdictions such as Canada, the U.S., the U.K., Australia and New Zealand, the laws of passing off orunfair competition also offer a recourse against any party who attempts to ‘‘pass off’’ their wares or services as those ofanother (McKelvey & Grady, 2008; Morcom et al., 2005; Scassa, 2010). The ‘passing off’ can be in relation to anunregistered mark, or it can be more generalized (Scassa, 2010). The law of passing off can capture conduct that goesbeyond the use of actual trademarks (for example, the manner in which services are delivered or presented).Nevertheless, in cases where non-sponsors have managed to obtain a certain profile for their products or services inrelation to major events, the law of passing off has proved relatively unhelpful (cf. National Hockey League v. Pepsi-Cola

Canada, 1995; The New Zealand Olympic & Commonwealth Games Association Inc. v. Telecom New Zealand Ltd., 1996). Thisis because passing off requires the defendant to have misrepresented its products or services as those of another(Morcom et al., 2005; Scassa, 2010). However, a company seeking to draft on the goodwill associated with a particularevent is not attempting to suggest that their products or services are those of their competitor, the official sponsor. Onthe contrary, they want to promote themselves as the source of their own products and services—they simply want tobenefit from the larger audiences attracted to the event in question. This makes the tort of passing off, particularly theelement of misrepresentation, difficult to establish.

Within existing national trademark regimes, a special status has typically been accorded to Olympic marks. In Canada, forexample, the Canadian Olympic Committee (COC) was long considered a ‘‘public authority’’, and as such, was entitled to haveits marks protected as ‘‘official marks’’ (Scassa, 2008). Official marks are freed from many of the restraints of traditionaltrademarks. The marks are not subjected to a rigorous examination, nor are they open to opposition (Morrow, 1993). Officialmarks do not expire in the same way that a regular trademark would; there is no requirement to pay fees to renew the mark(Scassa, 2010). The fact that a word or symbol may already be adopted and used by someone else prior to its adoption as anofficial mark does not prevent the word or symbol from becoming an official mark (Vaver, 1997). Official marks thus offermany advantages over regular registered trademarks. Notwithstanding the protection available to Olympic marks under thisregime, the Canadian government enacted the Olympic and Paralympic Marks Act (OPMA) to give special status to Olympictrademarks (Scassa, 2008). The enhanced trademark protection available to Olympic organizers in Canada and elsewhereoffers a high level of protection against those who make unauthorized use of any of the many Olympic-related marks inassociation with goods and services (Scassa, 2008). However, because ambush marketing does not necessarily rely upon theuse of the trademarks of either the event organizer or the sponsors, this kind of protection has been viewed by the IOC asinadequate to fully address ambush marketing (Payne, 2006; Seguin & O’Reilly, 2008). The emergence of a requiredguarantee for such legislation, in addition to tradition marks protection in the bid phase clearly shows the current viewpointof the IOC on this issue (Ellis, 2010; IOC, 2002).

Since trademark protection alone has been insufficient to address the concerns of event organizers, the IOC and its variousorganizing committees have used contract law to restrain a wide range of other conducts that could put the names or logos ofnon-sponsors into any form of spotlight associated with the Games (IOC, 2007). For example, Rule 51, Bye-law 1 of The

Olympic Charter (IOC, 2007) places strict restrictions on the size and placement of trademarks of manufacturers of clothing orequipment used by athletes, and tickets to Olympic events contain restrictions prohibiting their use as prizes in contests(McKelvey & Grady, 2008).

The combination of contract law ordering and trademark law nevertheless was still not considered a satisfactorymeans to ‘lock up’ the goodwill associated with an event (McKelvey & Grady, 2008; Payne, 2006; Seguin & O’Reilly,2008). From an event organizer’s perspective, the problem with trademark law is that it only protects the goodwillassociated with marks. The owners of marks are protected from uses of identical or confusing marks, and against usesthat might depreciate the value of their marks. However, ambush marketing does not need to exploit the marks ofanother to succeed. Discussion of various strategies for ambush marketing show, it is possible to ‘ambush’ an eventsimply by placing one’s own mark in the spotlight generated by the event (Crompton, 2004; Crow & Hoek, 2003;Meenaghan, 1994, 1996, 1998; Preuss et al., 2008).

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2.2.1. The Olympic and Paralympic Marks Act (Canada)

In the lead-up to the 2010 Winter Games, the Canadian government responded to its commitment to the IOC to protectthe exclusivity of official sponsors through direct legislative action. The Olympic and Paralympic Marks Act ‘‘provides for theprotection of Olympic and Paralympic marks and protection against certain misleading business associations between abusiness and the Olympic Games, the Paralympic Games or certain committees associated with those Games’’ (LegislativeSummary, 2007). The OPMA contains two main protections. The first is for a range of Olympic-related marks, and the secondaddresses ambush marketing activities. With respect to protected marks, s. 3(1) states that:

3(1) No person shall adopt or use in connection with a business, as a trade-mark or otherwise, an Olympic orParalympic mark or a mark that so nearly resembles an Olympic or Paralympic mark as to be likely to be mistaken for it(Olympic and Paralympic Marks Act, 2007).

The marks covered by this section are listed in Schedules I and II of the statute, and include both those official Olympicmarks which receive permanent protection, and those that are specific to the Vancouver Games, the protection of whichexpires on December 31, 2010. Protected symbols, words and phrases include (among many others) the French and Englishversions of: Canadian Olympic Committee, Olympia, Spirit in Motion, Jeux Olympiques, Olympian, the Olympic Rings symbol(permanent), as well as, Canada’s Games, Whistler 2010, Jeux de Vancouver, and the official Vancouver 2010 Inuksuk symbol(limited time) (Olympic and Paralympic Marks Act, 2007, Schedule 1).

In addition to the protection of Olympic and Paralympic marks, section 4 of the Act addresses ambush marketing byassociation. It provides:

4(1) No person shall, during any period prescribed by regulation, in association with a trade-mark or other mark,promote or otherwise direct public attention to their business, wares or services in manner that misleads or is likely tomislead the public into believing that

(a) the person’s business, wares or service are approved, authorized or endorsed by an organizing committee, the COC, or theCPC; or

(b) a business association exists between the person’s business and the Olympic Games, The Paralympic Games, anorganizing committee, the COC or the CPC. (Olympic and Paralympic Marks Act, 2007).

This provision aims to capture marketing efforts that create the illusion of a sponsorship relationship or other forms ofofficial endorsement between and advertiser and the protected events. While the above briefly outlines the details ofambush marketing legislation, and more specifically OPMA, the following section will examine the potential issues andconsequences of framing the ambush marketing this way from both legal and business perspectives.

3. Issues and consequences

3.1. Potential issues with framing ambush marketing as a legal issue

In a parliamentary democracy such as Canada, the introduction of a public bill is expected to fulfill some broader publicpolicy objective. In the case of trademark law, which is at least indirectly related to anti-ambush marketing legislation, theunderlying public policy objectives include protecting the investment of rights holders in the goodwill associated with theirmarks (Morcom et al., 2005) and ensuring that the public is not misled into purchasing wares or services from a trade sourceother than the one they associate with the mark (Gervais & Judge, 2005).

Section 4 of the OPMA, which specifically addresses ambush marketing by association is embedded within a statute thatalso serves the more traditional role of protecting Olympic trademarks. The protection of trademarks is familiar territory, andis justified for the public policy objectives described above. In the Parliamentary debates surrounding the OPMA, theobjectives put forth for the enactment of the anti-ambush marketing provisions related specifically to the protection of theinterests of the organizers and sponsors, with a public interest being identified in the commercial success of the games(Canada, House of Commons Debates, 2007a, 2007b). No attention was given to the issue of consumer protection. This is notsurprising, as ambush marketing does not give rise to the same issues of consumer harm as does trademark infringement. Forexample, a consumer is not likely to be misled in his or her consumption choices by the launch of a ROOTS line of Canadathemed clothing shortly before the start of the Olympic Games in Vancouver. The clothing is made by ROOTS and the ROOTSbrand is clearly marked. If there is any deception, it might be as to the relationship between the company and the Olympics—yet it is not evident that this results in a harm of any consequence to the consumer.

A key concern with addressing ambush marketing in legislation lies in the difficulty of identifying with precision theobjectionable conduct. As discussed earlier, the term ambush marketing is often used to embrace a wide range of conduct (cf.Meenaghan, 1994; Payne, 1998; Sandler & Shani, 1989) and could be considered to be somewhat of a ‘grey zone’ causingmuch confusion among all marketing stakeholders in the sport community (Ellis et al., 2011; Grady et al., 2010; McKelvey &Grady, 2008). While there remains no universally accepted definition of ambush marketing in the literature, one commonthread seems to be the idea of an attempted, direct or indirect, legitimate or illegitimate ‘association’ being made by non-sponsors with events such as the Olympic Games. Organizations such as the IOC/OCOG have been successful at ‘forcing’ host

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countries to pass legislations with the aim of protecting the property from ambush marketing through any type of‘association(s)’. However, since association(s) can take numerous forms, statutes enacted to address ambush marketing maycapture a varying range of conducts depending on the wording used. This can be seen in a comparison of the OPMA and theLondon Act. The OPMA refers to commercial activities that mislead or are likely to mislead the public into believing there isan official association or endorsement (Olympic and Paralympic Marks Act, 2007). Under the London Act, conduct is actionableif it is ‘‘likely to suggest’’ a commercial, contractual or other relationship (London Olympic Games and Paralympic Games Act,2006).

With this in mind it must be noted that as is the case with practitioners and scholars, the confusion around preciselydefining the ambush marketing was equally evident among parliamentarians. In Canada, concerns expressed byparliamentarians about ambush marketing were intermingled with concerns about counterfeiting and trademarkinfringement—problems that are distinct from ambush marketing based on veiled associations. In the U.K., the Ministerfor Sport expressly admitted that the ‘‘right of association’’ created to counter ambush marketing was drafted in thebroadest possible terms because there was no consensus as to what type of conduct it was meant to catch and becausethe future demands of the IOC for a legislative response to the public might change (United Kingdom, House ofCommons Standing Committee, 2005). Despite all of the above difficulties however, parliamentarians in both theCanada and the U.K. accepted that ambush marketing was widespread, and that it had a negative impact on thewillingness of sponsors to pay top dollar for Olympic sponsorships which will be discussed in more detail in the nextparagraph.

The most consistent claims as to the necessity of anti-ambush marketing legislation relate to the need to protect the valueof Olympic sponsorships (Canada, House of Commons Debates, 2007a; Payne, 1998, 2006). Yet if the dilution of the value ofOlympic sponsorships is to be put forth as the public policy justification for the legislation, the link between ambushmarketing and a decline in sponsorship values should be more than anecdotal. While ambush marketing is often asserted asa threat to sponsorship value, it is not clear that the value of Olympic sponsorships has indeed been waning. In fact,sponsorship investment has continued to increase significantly and is projected to break the $1billion mark for the TOPprogram in the upcoming quadrennial (IOC, 2010). In addition the IOC has continued to sign international partners includingDow Chemical and Proctor & Gamble who have both committed to the TOP program until after the 2020 Games (Dow, 2010;Proctor & Gamble, 2010) while VISA, along with Coca-Cola and Omega have already renewed their contracts until after 2020Games (IOC, 2009). Further, any decline in sponsorship values may be attributable to other factors. As noted above, therehave been a number of studies that have suggested that the IOC has struggled with brand management and has beencriticized for causing harm to its own brand through excessive commercialization (cf. Seguin & O’Reilly, 2008; Shani &Sandler, 1998). High profile corruption and doping scandals linked to the Olympics, consumer cynicism over excessivecommercialism, as well as concerns over human rights may also have an impact on the Olympic brand (cf. Seguin, Richelieu,& O’Reilly, 2008). Even if it were demonstrated that the value of sponsorships has declined in recent years, it would bedifficult to demonstrate that any significant decline in value is due to ambush marketing as opposed to any one or acombination of the other factors mentioned (Seguin et al., 2008; Tripodi & Sutherland, 2000). In light of this complex array offactors, the assumption that ambush marketing is a problem of significant enough dimensions to justify the creation of a verybroad new intellectual property right can be questioned. However, one could also argue that this issue is not relevant in theeyes of the IOC whose primary concern is to protect their own brand as well as the exclusivity of their partners. Given theintense competition between cities/governments to host the Olympic Games, the IOC is in a favourable position to insistupon such legislation which has become an important element of their brand management strategy (Payne, 2006). Byrequiring countries to introduce legal measures to protect sponsors from ambush marketing, the IOC is able to protect theirrights over those of all others (Grady et al., 2010) despite the broader public policy obligations inherent in the creation oflegislation. The IOC maximizes their benefits (i.e. revenue from sponsors) yet is able to keep the risks minimal with thefinancial burden of hosting the Games remaining with the host city/nation.

At bottom, the most basic public policy objective underlying the enactment of the legislation was that of necessity.Legislation against ambush marketing is now a condition imposed by the IOC for any successful Olympic bid. A documentreleased by the IOC in relation to debates of the U.K. Parliament on the London Act, stated:

The IOC, as early as in the phase of bidding for the Olympic Games, requires a guarantee from Candidate citiesconfirming that, prior to the commencement of the Olympic Games, legislation will be passed in the Host Countrywhich is necessary to effectively reduce and sanction ambush marketing, and to eliminate street vending and controladvertising space (including air space) during the period of the Olympic Games (House of Commons StandingCommittee D, 2005).

It is clear from both the Canadian and the U.K. Parliamentary debates that the OPMA in the first instance and the ‘‘right ofassociation’’ in the second were being put forward in order to meet this commitment.

The focus on the public policy dimension of legislating against ambush marketing is important for a number of reasons.The purpose for which legislation has been enacted is a key element in the interpretation of legislation by judges (Sullivan,2002). Further, in a constitutional democracy, the objectives of a piece of legislation may be scrutinized in determiningwhether the law unduly infringes upon protected rights or freedoms. A weak or insufficiently articulated public policy basisfor legislation may have an impact on both the interpretation of the legislation and its ability to withstand constitutionalscrutiny. These issues will be considered in the next two sections.

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3.2. Potential consequences of framing ambush marketing as a legal issue

The section above focuses on the re-framing of ambush marketing as a predominantly legal issue. With this in mind thefollowing section highlights three potential consequences: the placing of the regulation of ambush marketing in a legal andconstitutional framework; the role of legislation in setting the boundaries for legitimate and illegitimate conduct; and theprospective business-based management issues for the property owner.

3.2.1. Legal and constitutional framework

When ambush marketing becomes a legal issue by virtue of legislation specifically directed at the problem, it enterswithin a legal and constitutional framework that may have ramifications for how the issue is approached and addressed. Inthis respect, Canada provides a particularly interesting case study.

The current IOC demands for anti-ambush marketing legislation include protection against ambush marketing byassociation and ambush marketing by intrusion. The former is the classic kind of ambush marketing (Meenaghan, 1998;Sandler & Shani, 1989), and has been addressed in legislation typically by creating a ‘right of association.’ This right ofassociation protects the goodwill in the event, and is exercised by the event organizers. The right of association allows eventorganizers to control how commercial associations can be made with the event and by whom. Ambush marketing byintrusion refers to conduct which allows companies to place their trademarks within a certain physical proximity to theevent venues (Bartlett, 2007). In the past, ambush marketing by intrusion has been addressed chiefly by ticket conditionslimiting what can be carried, worn, sold or displayed within event venues, or on their grounds (Vassallo, Blemaster, &Werner, 2005). Legislation against ambush marketing by intrusion establishes a broader controlled perimeter around eventvenues that can include streets, parks and other public spaces, including public transit routes (Scassa, 2011).

In a unitary state such as the United Kingdom, protections against ambush marketing by association and by intrusion canbe included within the same statute, as all legislative authority originates with the central government (Hogg, 2010). In afederal state such as Canada, by contrast, the division of powers between federal and provincial governments makes itimpossible to address both types of activities within a single statute (Hogg, 2010). Thus in Canada, one finds the right ofassociation in the OPMA, while protections against ambush marketing by intrusion are found in Vancouver City By-laws(City of Vancouver, 2009).

The division of powers in Canada has also resulted in a right of association that is notably less broad than that in theLondon Act. In the London Act, the right of association applies ‘‘to the use of any representation (of any kind) in a manner likely

to suggest to the public that there is an association between the London Olympics’’ and the goods and services or business ofany person (London Olympic Games and Paralympic Games Act, 2006, Schedule 4, s. 1(1)). This is an extremely broad provision,requiring only a suggestion of association rather than confusion or deception as to the existence of an association. In Canada,by contrast, the OPMA provides only that no person shall ‘‘in association with a trade-mark or other mark, promote orotherwise direct public attention to their business, wares or services in a manner that misleads or is likely to mislead thepublic into believing that’’ there is a commercial association between that person and the Olympic or Paralympic Games(Olympic and Paralympic Marks Act, 2007, s. 4). The Canadian statute requires that the offending activity be ‘‘likely to misleadthe public’’—a more difficult threshold to meet than London’s ‘‘likely to suggest.’’

The difference between the scope of the two provisions likely lies in the fact that the federal government in Canada doesnot have a broad and unlimited jurisdiction over all forms of intellectual property (Vaver, 1997). It is granted jurisdictionover copyrights and patents, and the courts have interpreted the ‘‘trade and commerce’’ provision of the federal constitutionto include the power to create a national regime for the protection of registered and unregistered trademarks (Kirkbi AG v.

Ritvik Holdings Inc., 2005). Canadian courts have also been clear, however, that jurisdiction over trademarks does not extendto a broad-based jurisdiction over unfair competition; recourse for injurious conduct that amounts to unfair competition liesgenerally with the provinces. (Hogg, 2010; MacDonald et al. v. Vapor Canada Ltd, 1977) Canada would lack the constitutionalauthority to create a new intellectual property right in the goodwill associated with an event. As a result, the right ofassociation in Canada is buried in a statute dealing with Olympic and Paralympic marks, and it incorporates the term ‘‘trade-mark’’ (‘in association with a trade-mark or other mark’) in an attempt to find a foothold for this provision within federaljurisdiction. Yet the use of a ‘‘trade-mark’’ referred to in s. 4 would appear to include the use of one’s own trademark and notjust the use of the mark of a competitor or a mark of the event organizer. The trademark ‘hook’ on which this provision hangsseems tenuous, and whether it is enough to bring the provision within the limits of federal jurisdiction will be a matter forthe courts to determine. The important point here is that once ambush marketing becomes a legal problem, its definition andits remedies may be shaped by the constitutional and legal framework in which it is addressed. In Canada, the result is a rightof association with considerably less scope than in the U.K., and the relegation of the regulation of ambush marketing byintrusion to municipal by-laws.

The other dimension that must be considered once ambush marketing is placed within a legal and constitutionalframework is that where they exist, constitutionally guaranteed rights and freedoms may play a role in constraining thescope of any legislative measures. This is particularly important with a ‘right of association’ that seeks to constrainsomething as vague as an ‘association’ with an event. The constitutional guarantee of freedom of expression in s. 2(b) of theCanadian Charter of Rights and Freedoms has been found to extend to commercial speech (Irwin Toy Ltd. v. Quebec (Attorney-

General), 1989). While commercial speech may be regulated, any limitations imposed by government must constitutereasonable limits demonstrably justified in a free and democratic society (Canadian Charter of Rights and Freedoms, 1982, s. 1).

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Thus, in Canada, legislation that prohibits expression because it merely suggests an association with an event might bedifficult to justify as a reasonable limit. Although s. 4 of the OPMA is expressed in more constrained language than the right ofassociation in the London Act, it does still place limits on commercial expression. In order to justify these limitations, thegovernment must be able to demonstrate that the measure addresses ‘‘an objective related to concerns which are pressingand substantial in a free and democratic society’’ (R. v. Oakes, 1986). As noted in the preceding section, the public policyjustification for s. 4 of the OPMA is not entirely clear, and it may be vulnerable to constitutional challenge.

If a court faced with a Charter challenge to s. 4 of the OPMA accepted that the legislation addressed a pressing andsubstantial objective, it would then have to consider whether the measures chosen were proportional. The Supreme Court ofCanada has described the proportionality test in these terms:

First, the measures adopted must be carefully designed to achieve the objective in question. They must not bearbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective.Second, the means, even if rationally connected to the objective in this first sense, should impair ‘‘as little as possible’’the right or freedom in question. Third, there must be a proportionality between the effects of the measures which areresponsible for limiting the Charter right or freedom, and the objective which has been identified as of ‘‘sufficientimportance’’ (R. v. Oakes, 1986, para. 70).

Legislation for which there is a poorly articulated purpose, or which is drafted in a vague or open-ended manner will notfare well under scrutiny, as it will be difficult to argue that it impairs the freedom of expression as little as possible. Indeed,when the law sets a standard that is unduly vague, it cannot be minimally impairing because it becomes difficult orimpossible to know what conduct will be permissible and what will infringe the law (R. v. Nova Scotia Pharmaceutical Society,1992).

Overbreadth is a related constitutional concern. A law which is overbroad is one that is drafted in such a manner as tocapture more conduct than is necessary to address the problem faced by the legislature. An overbroad law that infringes onprotected Charter rights cannot be minimally impairing (R. v. Nova Scotia Pharmaceutical Society, 1992). While section 4 ofCanada’s OPMA is considerably less broad than the right of association in the London Act, it nevertheless shares some of thedeficiencies that may be found in legislation that does not flow from a strong grounding in public policy and that is drafted asbroadly as possible so as to catch all manner of conduct that may be considered as encroaching on the newly createdmonopoly over the goodwill in an event.

In creating such broad measures governments must rely upon the good faith of those into whose hands they hadplaced enormous discretionary powers. However, under the OPMA and the London Act, these hands are those of theevent organizers, who were themselves under substantial direction and control from the IOC (Department of Culture,Media and Sport, 2005; VANOC, 2007)—bodies not accountable to any national government. In Canada, VANOC stated itsrole in these terms: ‘‘VANOC is legally obligated to the IOC and to its marketing partners to protect against unauthorizeduse of the Olympic Brand and ambush marketing in Canada’’ (VANOC, 2007). Perhaps aware of the exceptional rightsand discretion it had been granted, VANOC assured the public that it: ‘‘will enforce its rights in a fair and reasonablemanner, which will include pro-actively educating and engaging the public and implementing a fair process forassessing infringement and enforcing its rights’’ (VANOC, 2007). The attempt to articulate guidelines is important giventhe potential scope of the right and its ambiguity; it does not substitute, however, for a clearly delineated and measuredlegislative response.

The legal/constitutional framework of each country in which anti-ambush marketing legislation is enacted will inevitablyhave an impact on the scope and boundaries of the rights created. Thus there may be significant differences in anti-ambushmarketing protection from one jurisdiction to another. Further, the presence of meaningful constitutional rights andfreedoms in a jurisdiction may further circumscribe the scope of anti-ambush marketing legislation or may raise issues downthe road as to the legitimacy of the protection or the legality of its enforcement.

3.2.2. Legal interpretive context

Another consequence of translating ambush marketing into a legal issue is that the legislative provisions inevitably setthe boundaries of legitimate and illegitimate conducts. In other words, while in a context where there is no right ofassociation, there may be debates about the ethics of certain forms of activity labelled as ambush marketing, in a systemwhere there is a law that creates a right of association, marketing campaigns can be evaluated in terms of whether they fallfoul of the law or not. In such a context, the approach of ambushers becomes one of the seeking legal advice on how toconduct an advertising campaign that will exploit any limitations or loopholes in the law.

The recent Canadian experience in relation to the Vancouver 2010 Games provides an interesting illustration, and onewhich also demonstrates the importance of the legal/constitutional context in which legislation is enacted. The legalboundaries carved out in Section 4 of the OPMA require that an advertising or promotional campaign mislead or be likely tomislead the public into believing there is a commercial association between the advertiser and the Vancouver Olympics. Thepublic is not likely to be misled where it is made patently clear that there is no commercial association. Thus, the launch ofthe Lululemon clothing line titled ‘‘Cool Sporting Event That Takes Place in British Columbia Between 2009 and 2011 Edition’’combined with press releases making it clear that Lululemon is not an Olympic sponsor is not likely to mislead the public inthis respect. The tongue-in-cheek campaign deliberately avoids using any of the suspect words in either Part 1 or Part 2 ofSchedule III of the OPMA, yet still profits from public interest in the Games.

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An advertising campaign by Roots Canada to launch a ‘‘Canada Collection’’ line of clothing in the lead up to the VancouverGames, and in association with non-sponsor Master Card, and Right to Play (a charity excluded from the Olympic Villagebecause of its own sponsor relationships), also likely falls short of the threshold set in s. 4 of the OPMA. It would be difficultindeed to find that the law prevents the launch of a line of clothing by a company that sells clothing, or that it prevents theadvertising of that line of clothing. ‘‘Canada’’ is not a suspect word in Schedule III. The Roots Canada example is particularlyinteresting because Roots has been a past Olympic Sponsor and Right to Play is an organization supported by many Olympicathletes. In this case, even if an association exists in the minds of members of the public between Roots and the Olympics, itwould be difficult to demonstrate that it had not already been established through the many years of legitimate commercialrelationships between Roots and the Olympics.

The important point here is that when ambush marketing is converted into a legal issue, the way in which the law isframed redefines the concept. Conduct which is captured by the terms of the law is illicit; but that conduct which fallsoutside the statutory language is legitimate. If a simple disclaimer of association is sufficient to make an advertisementunlikely to mislead the public into believing that a commercial relationship exists with event organizers, then ambushmarketing that plays on the excitement or energy around the event while disclaiming formal association will be legitimatewithin the terms of the law. The type of legal advice necessary to permit companies to exploit legal loopholes is, however,only genuinely affordable by large corporations. This has the ironic effect of permitting them to continue to engage inambush marketing while leaving small and even mid-sized local businesses to err on the side of caution and avoid allreferences, oblique or otherwise, to the event.

Converting ambush marketing to a legal problem has a further effect which is a by-product of the high cost of access to thelegal system. A law that is potentially unconstitutional either because it is outside the jurisdiction of the enactinggovernment or because it violates rights to freedom of expression may be challenged on these grounds. Even withoutgrounds for a constitutional challenge, it is also possible to argue that the allegedly offending conduct is not captured by theterms of the law. Yet in order to make these arguments in court, it is necessary to be able to afford the high cost of legalcounsel and litigation. These costs are not easily affordable by small or even mid-sized businesses, although they may well bea worthwhile cost of doing business for a large company hoping to benefit substantially from a high profile advertisingcampaign during the peak of public interest in the major event. The consequence may be that small and mid-sized businesseswho receive cease and desist letters with respect to conduct which may or may not be ambush marketing, will be more likelyto cease and desist from the activity because they are not in a position to defend themselves. Ironically, these companies maybe the ones that the public would be least likely to expect to be Olympic sponsors as they are unlikely to be in directcompetition with Olympic sponsors. For instance a Vancouver Family Restaurant called Olympia and a first aid servicescompany in the Vancouver area with the name Olympic both clashed with VANOC over trademark issues (The Gazette,2008). It is the conduct of large companies that compete with existing sponsors that is likely to have the greatest impact onevent sponsors; yet these companies are in the best position to seek legal advice to circumvent or to challenge laws aimed atrestricting ambush marketing.

3.2.3. Business management context

The above discussion examines the potential constitutional framework and legal interpretive related consequences offraming ambush marketing as a predominantly legal issue. However it can be argued that framing it in such a way could haveconsequences in a business management context as well.

Specifically in regards to the Olympic movement the International Olympic Committee and by extension any OrganizingCommittee (OC) are the guardians of the Olympic brand. Hence, they are responsible to develop brand management programsthat seek to protect, build and leverage the value of the brand. It follows then, that when discussing the potential businessmanagement consequences of a law-centric approach to fighting ambush marketing, the discussion mainly focuses on how itcould impact the IOC and OC approach. The first potential issue for the IOC and OCs is the impact of legislation on sponsorexpectations. As anti-ambush marketing legislation has gradually become standard to the point where it must be guaranteed inthe bid phase, its status as a value-added tool for sponsors is no longer relevant. Rather than something that can be used as aselling point, it is commonplace and expected. The question then becomes where does the IOC go from here? Legal protection isgenerally viewed as the ultimate deterrent and defence against objectionable behaviour. However, if as suggested above, thepowers of such legislation can be critically limited by legal frameworks, loopholes, smart lawyers and creative marketing teamswhat is the next step to protect the brand and appease the needs of sponsors? The ability of the IOC to achieve authoritativemanagement powers greater than those provided by legislation, either symbolically or literally, is implausible. Yet sponsors willcontinue to demand protection for their investment (e.g. exclusivity), and will expect the IOC to continue to expand andimprove their program for combating ambush marketing as part of the sponsorship agreement. As the cost of the hosting theGames inevitably continues to rise and with it the need for greater sponsorship dollars, failure to meet the increasingexpectation of sponsors could become progressively more dangerous to the funding of the movement as a whole.

A second potential business management consequence of framing ambush marketing as a legal issue would be aforeseeable increase in the need for legal expertise within the IOC, NOCs and OCs. While the IOC already possesses a capablelegal team it is the NOCs and OCs that are of more concern. With over 200 countries involved in the TOP sponsorship program(IOC, 2010) it is inevitable that there will be a broad range of professional capabilities across the NOCs. Research has shownthat many sponsors, as well as the IOC, already have concerns in regards to the marketing competencies of many NOCs andbelieve it will be a significant issue for the IOCs marketing commission in the near future (Seguin & O’Reilly, 2008). With the

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IOC already struggling in its attempts to fully educate NOCs on brand management and marketing strategies, the furthercomplication of legal strategies will only stagnate this process. In the discussion above it was noted that many complicationsin a legal approach still exist such as easily exploitable loopholes, divisions of power, and constitutional challengesdepending on the legal structure of the host nation and city. Navigating these issues has already been problematic for theIOC’s trained lawyers, lawmakers, and large NOC legal departments. With this in mind it makes obvious the difficulties thatwould be faced by smaller and less capable NOCs and OCs. Researchers suggest that consistency and continuity in anapproach to brand management practices is critical to a brand’s health and growth (Aaker, 1991; Keller, 2003). The strengthof the Olympic brand and its value to the Olympic organizers makes a compelling argument that all the 200 organizationswhich have access to it have the proper capabilities to manage any programs which are in place to protect the brand or theremay be a risk of doing more damage than good.

A third potential brand management consequence may be the increasing need for adequate public relations managementto deal with a potential backlash to such measures. The media space around major events continues to expand at a rapid rateboth from traditional accredited media sources and citizen-generated media. The increasing use of communication toolssuch as blogs, forums, facebook and twitter means that more opinions, both positive and negative find their way into thepublic sphere. With an influx of opinions and information reaching consumers from various sources, a pro-active andconsistent world-wide public relations program becomes a necessity. As discussed above, legal issues tend to be complicatedfor all but those most familiar with the law such as lawyers and law professors. This leaves the area open to mis-informationand interpretation as most consumers are dependent on various media sources for their understanding of such issues.Increasingly negative sentiments towards anti-ambush marketing legislation communicated though both traditional andalternative media (cf. Geist, 2007; Mickleburgh, 2009) will therefore need to be addressed. The same way doping and briberyscandals have in the past, the negative backlash for a perceived over-extension of legal powers to protect Olympic sponsorsmay require considerable media image management which the IOC, OCs and NOCs must be able to handle. Given the abovediscussion on the limitations of many NOCs this could prove to be a significant challenge.

Another potential consequence of making ambush marketing a primarily legal issue is that such an approach may promote asense of complacency regarding other business tactics used in managing the threat of ambush. This could create what isdescribed by Grady et al. (2010, p. 153) as a ‘‘psychic ‘safety net’. . .[whereby] insisting on unprecedented trademarkprotection. . .may unwittingly demotivat[e] its official sponsors to fully maximize and leverage their association with theGames’’. This is of particular concern when it comes to the sufficient activation and leveraging of sponsorships. Sandler andShani (1993) note that the initial sponsorship fee really just permits a sponsor to begin spending even more money promotingtheir new association, while Seguin, Teed, and O’Reilly (2005) argue that sponsors should spend anywhere up to a 10:1 ratio ofleveraging to sponsorship fee when discussing major sport properties. It is noted in the literature that activation is an essentialpart of any successful sponsorship agreement for the value it provides to both the sponsors and the property (Seguin & O’Reilly,2008). For the sponsor, activation serves various purposes depending on their objectives for the sponsorship. It may allow themto claim their space around the event (Seguin & O’Reilly, 2008) and ensure that consumers are making the connection betweenthe values and images associated with the event and their product. It also has benefits from generating increased awareness fortheir product by putting it in front of consumers through a range of promotional techniques. There is also value in activation forthe property as the use of their brand and its associated values and images by sponsors serves to create further exposure ofconsumers to the brand in the marketplace. Activation is noted as a vital strategy in fighting ambush marketing (Lyberger &McCarthy, 2001; Sandler & Shani, 1993; Seguin & O’Reilly, 2008) but if sponsors feel that legislation is all that is required for sucha task the money spent on leveraging may begin to decrease and with it the other positive impacts of the practice.

Finally, a more general consequence which may be felt by the IOC as a result of framing ambush marketing as apredominantly legal issue is the complication of the bidding process. Already the bid process requires host countries to enactlegislation to protect the Olympic symbols and challenge ambush marketing. However major sporting events are, by nature,international phenomena and as such they are subject to the varied expectations, structures and rules which make eachplace unique, particularly in respect to legal systems. In the discussion above it was noted that differences in the division ofpowers within Canada and United Kingdom require diverse approaches to legislating against ambush marketing. It wassuggested that Canada’s Olympic and Paralympic Marks Act (2007) was more limited in scope as the federal government lacksunlimited jurisdiction over unfair competition practices. In relation to the bidding process this may create complications ifsponsor and IOC expectations around anti-ambush marketing continue to grow. Will there come a time when the legalstructure of a country can inhibit its ability to bid for major events? For example, while OPMA was deemed sufficient for thecurrent needs of the Olympic movement, in the future will the inability of the Canadian government to extend the samebroad legal protection as the U.K. hinder the country’s chance to play host to the Olympic Games? By the same token, it ispossible that countries that have more restricted civil liberties and that demonstrate a willingness to implement moredraconian measures against ambush marketing, including criminal penalties, may become more attractive sites for events. Ifindeed the legal requirements of the IOC became too stringent, the potential exists that fewer countries would be able tomeet their prerequisites and a negative backlash may follow.

4. Conclusions and further research

As sponsorship revenues continue to rise and ambush marketing legislation becomes a mainstream requirement to hostthe Olympic Games, there will be increasing interest in examining its impact from various angles. This paper viewed the

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issue with a critical lens with the purpose of examining the issues that arise when ambush marketing is framed as a legalissue as opposed to a predominantly business issue. It discussed the consequences of placing ambush marketing in such arigid legal context, from both legal and business management perspectives. These may include unanticipated consequencessuch as the de facto legitimization of marketing campaigns that exploit deficiencies or loopholes in the legislation, and thecreation of a false sense of security among sponsors that leads to a failure to optimally leverage sponsorship rights.

Finally, this paper brings to light a number of different research directions for the future. The first is to go to variousOlympic stakeholders, such as athletes and national sport organizations, to examine any perceived and/or realized impactsthat these restrictions may be having from their perspective. Another step forward would be to examine the implications thisissue has in a debate over the power of the IOC versus the power of governments. The ability of the IOC to make such arequest and for governments to simply obey with little fanfare points to an interesting and dynamic power relationshipbetween the two parties. Furthering this, resource dependence theory (cf. Frooman, 1999) could also be used to examine theOlympic Games as a resource and its relationship to the power the IOC holds in granting the Games to bidding cities. Finally,the potential for such legislation to be amended into a permanent act that could be invoked for any other major sport event issomething that is worth studying. From a potentially positive perspective, would this increase the ability of Canadian citiesto attract major sporting events? Or alternatively, from a more negative view, how does this further infringe on the rights ofthe public in relation to their interaction and engagement with a public event that is partly funded by their tax dollars?

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