Brands face a tricky balancing act between capitalising on the global platform provided by the World Cup and the need to be sensitive to political tensions
Alex Kelham
Alex Kelham is an experienced commercial and IP lawyer, and leads Lewis Silkin’s firm-wide Sports Business Group. She advises brands, marketing agencies and other IP-rich businesses on a range of commercial and marketing issues.
Top five brand issues at Fifa World Cup
15th June 2018, 09:16
The Fifa World Cup is under way, with the final to be played in Moscow on 15 July. So here's some #ad(vice) on the top five issues facing brands over the month to come.

1. Social influencers 

Since the 2014 Fifa World Cup in Brazil, the use of social influencer marketing has skyrocketed. Footballers are becoming more social media savvy, but there is a new generation of social influencers who are much more engaged with their following and can give brands much greater exposure. It’s no surprise, therefore, that we’re predicting that influencers will play a key role in advertising around the World Cup this summer.

However, in a series of rulings (one including Wayne Rooney and Nike) the UK’s Advertising Standards Authority has made it clear that failure to identify influencer posts as advertising could breach the ASA’s codes, meaning the ad might have to be withdrawn – generating negative publicity for the brand and influencer.

Social media will also play a key role in reactive marketing during the World Cup. Luiz Suarez’s apparent biting of Italy’s Giorgio Chiellini at the 2014 World Cup sparked a social media frenzy, including Snickers’ amusing tweet that a Snickers was ‘more satisfying than an Italian’. This reactive content can win great exposure; however, brands need to be wary of possible infringement issues that could arise by referring directly to the World Cup or a specific player or team, or using stills of match footage without permission.

Top tips:

• Labels: If you’re paying an influencer to post something, make sure it’s clear it’s an ad. Using ‘#ad’ is often the neatest way to ensure you’ve complied with the rules.
• Advance warning: Brands need to make it clear a post includes marketing content before consumers have viewed it (e.g. putting this at the beginning of a video rather than the end).
• React well: If you’re planning on running some reactive social media, make sure your teams are well briefed on the do’s and don’ts.

2. Ambush by association

If a brand isn’t a sponsor of the World Cup it might try to associate itself with it by making references to teams, players or the event itself. This is ambush marketing by association. Just because it’s described as ‘ambush’ it doesn’t mean it’s infringing any legal rights. At Brazil 2014, several (non-sponsor) brands ran effective campaigns around the World Cup and avoided legal action by using indirect references to the competition (e.g. Beats' 'The Game Before the Game' campaign). This year Beats has scored again with its ‘Made Defiant’ campaign, featuring the likes of Eden Hazard and Harry Kane. This use of players to endorse a brand is an effective way of creating an association without infringing any rights of the tournament (at least under English law).

When trying to establish an association, brands need to exercise caution to ensure they do not infringe any third party trade marks or copyright (e.g. referring directly to ‘Fifa’ or including an image of World Cup mascot ‘Zabivaka’ would carry a high risk of infringement). Creating an impression that a brand is affiliated with or endorsed by the event, a team or a player could also carry a risk of breaching laws on misleading advertising, or an action for passing off in the UK. In addition, Russia’s ‘2018 World Cup Law’ creates an offence of ‘unlawful trade’ which is committed where a brand associates itself (directly or indirectly) with the Fifa World Cup without permission.

Top tips for sponsors:

• Attack is the best form of defence: An effective campaign will help to overshadow the impact of any ambush marketing by competitors.
• Use your rights: Use any rights you have from Fifa or the team you’re sponsoring to make sure your brand stands out over and above any ambush marketers.

Top tips for non-sponsors:

• Protected marks: Avoid using third party marks or content without permission. 
• On the face of it: Does it look like an official advert from a World Cup sponsor? If so, it’s probably crossed the line of what is an ‘acceptable’ ambush.
• Local advice: If you’re considering running an ambush campaign in Russia, we suggest seeking local advice on its compliance with the Russian 2018 World Cup Law.

3. Ambush by intrusion

Ambush by intrusion relates to brand activity on the ground at the World Cup, usually aimed at getting maximum publicity (typically through broadcast media) without paying official fees. In one classic major intrusion campaign, Bavaria gave away heavily branded, bright orange lederhosen to fans at the 2006 World Cup, securing huge exposure within the stadium, on television and in the press without paying for official sponsor status.


This year, sponsors will be protected by the offence of ‘unfair competition’ in Russia’s special 2018 World Cup Law

Sponsors rely heavily on Fifa to control this type of ambush. The terms and conditions of match tickets will usually prohibit the display of any commercial messages. This year, sponsors will also be protected by the offence of ‘unfair competition’ in Russia’s special 2018 World Cup Law. This special legislation can be widely interpreted, so non-sponsors should seek local advice before launching intrusion campaigns in Russia.

Top tips for non-sponsors:

• Local advice: Seek local legal advice on the impact of the 2018 World Cup Law for any intrusion campaigns you are looking to run in Russia.
• Ts&Cs: Check the ticket terms and conditions for any restrictions on promoting commercial messages within or around the stadium.

4. Political concerns 

It’s not often you associate football with geopolitics, but the hosting of the World Cup in Russia this year comes at a time of increasingly tense relations between certain participating countries. There has been press coverage of Russia’s anti-LGBT+ policies, players’ concerns over racist behaviour, and concerns over violence against fans. Brands face a tricky balancing act between capitalising on the global platform provided by the World Cup and the need to be sensitive to these political tensions.

Top tips: 

• Be aware: Stay on top of any political and security developments in case you need to amend your campaign accordingly. It’s likely consumers will be critical of brands which do not appear to be alive to these issues.

5. Technology 

Looking to the future, by the time we get to Qatar 2022 it’s likely that the growing demand for interactive, personalised content and the use of VR technology will be much more accessible. 

One recent technological development which has enormous potential is digital replacement (or live virtual) advertising. This new form of advertising, which is to be introduced in the German Bundesliga next season, enables domestic TV audiences to see the ads displayed on the LED boards by the pitch whilst international audiences view digital ads relevant to their market that are digitally overlaid on the LED boards. As the technology develops further, we could even see such digital ads become personalised to specific households and viewers.

Although regulation is lagging behind technology, by the 2022 World Cup, it is likely that brands will be using such technology to get around Qatar’s restrictive advertising rules when broadcasting internationally. Brands should be thinking now about the opportunities this presents, but also keep on top of developments to ensure they not only stay ahead but also stay compliant.

 

Lauren Stone, a trainee at Lewis Silkin, contributed to this piece.

Sportcal