By Dr Owen Morgan

A story recently came out of the FIFA World Cup in South Africa with an IP flavour to it. It involved the arrest of two young Dutch women for allegedly breaching South Africa’s strict ambush marketing laws by wearing dresses produced by a Dutch brewing company, Bavaria, to a World Cup match.  The dresses had been launched in April and, according to one report, some 5,000 had already been sold over the Internet.

The young women’s alleged offence was to provide another 30+ young women (South African locals), who were not charged, with short orange dresses. The group wore the dresses to the game between Denmark and the Netherlands.  Orange is the national colour of the Netherlands and is well recognised as such.  The inevitable YouTube video of the event has already surfaced under the name ‘Nederland Denemarken Bavarian Babes’  It shows the young women arriving in red outfits that seem to be in the Danish colours; then stripping off those outfits to reveal the orange dresses underneath and then dancing as a group. (There is another YouTube video entitled ‘Greatest Threat to the World Cup So Far’.) In the second half, the young women were removed from the stadium, questioned by FIFA and then by the police before being released.

This is an example of classic ambush marketing.  The official beer of the World Cup is Budweiser which is brewed by Anheuser-Busch and FIFA is seeking to protect Anheuser-Busch’s interests.  FIFA regards such promotional activity as a means of using fans to advertise products that compete with official sponsors’ products.  Preventing the use of fans as ‘walking advertisements’ is one of the primary objectives of FIFA’s rights protection programme.

The ambush replicates a similar ambush which Bavaria staged at the 2006 FIFA World Cup. At that event, Bavaria distributed orange Leeuwenhosen (Lion pants in the style of lederhosen) to hundreds of fans.  At the match between the Netherlands and the Ivory Coast, fans wearing the Bavaria-branded Leeuwenhosen were ordered to take them off and many of them watched the game in their underpants.  This option was not offered to the young women in the most recent ambush.

The two women have apparently been charged with an offence under section 15A of the Merchandise Marks Act 17 of 1941 and associated regulations.  Section 15A enables the Minister of Trade and Industry to designate an event as a protected event.  Subsection (2) provides that: ‘no person may use a trade mark in relation to such event in a manner which is calculated to achieve publicity for that trade mark and thereby to derive special promotional benefit from the event, without the prior authority of the organiser of such event.’ Contravention of subsection (2) means that a person is guilty of an offence (see subsection (4)).  The penalty for conviction of a first offence is liability to a fine not exceeding R5,000 (AU$ 778, NZ$ 954) for each article to which the offence relates, or imprisonment for up to three years or both.

If the prosecution proceeds under these provisions, it will be interesting to see how it establishes that the orange dresses which bear a small purple logo and/or the colour orange is a trade mark and that the young women ‘used’ the trade mark in a manner calculated to achieve publicity and promotional benefit.  A quick review of the Bavaria beer website (http://www.bavaria.com/ ) didn’t reveal any particular use of the colour orange in association with Bavaria beer or its corporate personality.

Over-reaction?

The swift reaction of the South African authorities and the draconian penalties to which the two young Dutch women could be subject led the Dutch Foreign Minister Maxime Verhagen to phone the South African ambassador in The Hague, Peter Goosen. ‘He indicated to the ambassador that the charges and the arrest of these two woman were disproportionate and not correct,’ said the spokesman for the Netherlands embassy to South Africa, Christoph Prommersberger.

One wonders whether the whole issue will be quietly shelved once the World Cup is over.

The New Zealand connection

The Rugby World Cup to be staged in New Zealand in 2011 is a major event that will involve a truly global audience.  New Zealand has had ambush marketing legislation in place since 2007 and it includes a provision that is designed to cover what occurred in South Africa.

Section 18 of the Major Events Management Act 2007 provides that: ‘No person may advertise in a clean zone during a clean period without the written authorisation of the major event organiser.’ (In brief, a clean zone defines the venue for a major event and the area around it; a clean period covers the time period of a major event.)  In the Act, advertising is defined as including ‘any form of communication (including selling or giving away goods)’. Section 22(b)(i) provides a gloss in that section 18 does not apply to clothing worn by ‘a member of the public, unless that item is being worn, carried, or used in co-ordination with other persons with the intention that the advertising intrude on a major event activity or the attention of the associated audience;’.

If the ambush had occurred in New Zealand, and if the two young Dutch women had sold or given away the orange dresses, they and Bavaria would be in breach of section 18 of the Major Events Management Act 2007.  However, if the dresses were lent to the other women, there might well be a defence.

It seems likely that a hard-nose attitude will be adopted in New Zealand. The general manager of Rugby World Cup Ltd in New Zealand was recently quoted as saying, ‘Be aware we’ve got specific rights protection teams.’

Perhaps it’s just as well that the Netherlands haven’t qualified to compete in the Rugby World Cup in New Zealand – or maybe it’s a pity that they haven’t! We could do with a bit of fun!