Ambush marketing is everywhere. You may be surprised when ordering the traditional Beijing snack, pea cake, at the Hua Jia Yi Yuan Restaurant, because it is now called the “Gold and Silver Medal Cake.” In preparation for the upcoming Olympics, many restaurants in Beijing are introducing Olympic-themed dishes, with names closely related to Olympic events. On the menu at the Quan Ju De’s branch near the “Bird Nest” Stadium, you find dishes with names like “Short Track Speed Skating Sprint,” “Baseball Baby Corn,” “Discus Mushroom,” and “Javelin Bamboo Shoots.” While the diners are savoring the taste of the Olympics, few notice if these restaurants are not Olympic sponsors. As the Olympics approach, non-sponsoring companies are busy deploying their Olympic marketing strategies. Even on the official Olympic channel CCTV 5, a non-Olympic sponsor Li Ning’s logo is clearly seen on the shirts of sportscasters. 

To prevent companies from engaging in ambush marketing, on July 3, BOCOG’s marketing department and the China Advertising Association jointly issued an official “Anti-Ambush Advertising Initiative.” It urges advertising companies and practitioners to support business ethics. They are not to engage in any commercial activity that could mislead the public, provide, or create ambush concepts or advertisements or play “edge ball” with marketing activities of official Olympic sponsors.

Ambush marketing refers to attempts by firms that are not certified Olympic sponsors who associate their products with the Olympics to capitalize without paying for the right to do so. These companies are nicknamed the “Olympic Ambush Marketing Committee (OAMC).” This form of marketing is divided into two categories: infringing acts and non-infringing acts. Infringing acts refers to the illegal act of directly adopting the protected intellectual properties such as the Olympic logo, graphics, and characters in the advertising and marketing promotions, without the authorization from the right holders. In accordance with the relevant regulations, administrative and legislative methods can be adopted to stop infringements. In order to further strengthen IPR protection, more than 200 Olympic symbols have been filed with the State Administration for Industry and Commerce by BOCOG, including the latest word marks “08火炬”, “08圣火.” Additionally, the vertical view of the “Lucky Cloud” torch was registered as an Olympic symbol. Use of these symbols without authorization will be considered an infringement. According to the Regulations on the Protection of Olympic Symbols, no one may use the Olympic symbols for commercial purposes (including potential commercial purposes) without the express permission of the rights owners.   

Misleading non-infringement actions committed by the “OAMC” are called “pure” ambush marketing, which refers to the actions that deliberately avoid protected Olympic IPR, but objectively mislead the public. Li Yanjun, director of the Legal Affairs Department of BOCOG, said, “The Initiative issued by BOCOG is mainly targeting the pure ambush marketing.”

As the saying goes “While the priest climbs a post, the devil climbs ten.” Compared to infringements with little technical skill, crafty edge ball practices are much preferred by the “OAMC” members. Accordingly, slogans like “Cheer for the Chinese Teams,” “Cheer for 2008 China,” and “Applause for 2008” and “Dream 2008” flood advertising and marketing campaigns. For example, the “2008 Chinese Teams Want Want” advertisement from Want China Holding Limited has been playing continuously on several channels. There are also large enterprises and MNCs among the “OAMC.” The only difference is that ambush marketing adopted by these huge companies is slyer, thus hard to track. In September 2007, Olympic sponsor Coca Cola’s arch rival, Pepsi, took on a whole new look—swapping the traditional color blue for red. The campaign was called “Passion of 1.3 Billion, Red for China.” While Adidas is an Olympic sponsor, Nike has taken a different approach. They sponsor individual athletes and teams, in basketball, swimming, weightlifting, and track and field. Liu Xiang and Yi Jianlian have both signed as Nike spokespersons. However, the company center stage is Li Ning, who signed a contract with CCTV 5 last year, agreeing that during the programs and sporting events shown on CCTV 5 between 2007 and 2008, moderators, sportscasters, commentators, journalists, and even program guests would have to wear the Li Ning logo.     

Soon, efforts from “OAMC” members paid off. The “2008 Olympics Sponsorship Follow-up Effects Research” conducted by Ipsos shows that 63% of the consumers confuse non-Olympic sponsors for the real thing. By way of example, 76% of the consumers consider China Telecom as an Olympic sponsor, while only 73% are aware that China Netcom is the official Olympic sponsor. 70% of the consumers consider Nike as an Olympic sponsor; Li Ning’s slogan “anything is possible”, has had greater success than the Adidas slogan “impossible is nothing”.  82% of the consumers regard Li Ning as an Olympic sponsor, while in actuality, sponsor Adidas is only recognized by 69%.

To tackle pure ambush marketing, BOCOG hopes to garner response and support from advertising agents and advertisers because of the Initiative. Although it is a moral appeal without the power of enforcement, Li Yanjun explained, “BOCOG’s actions against pure ambush marketing starts with moral appeals but are not limited to them.”

He continued to say, “Although the Chinese government has not passed laws against ambush marketing, it does not mean that BOCOG will ignore the issue.” BOCOG will work in conjunction with the Beijing municipal government to prevent ambush marketing by controlling outdoor advertisings on road signs, neon lights, billboards, bus stops, mobile outdoor advertising, and buses. During the Olympics, advertising near the Olympic venues (within the fifth Ring Road in Beijing), regardless of long-term agreements, BOCOG and the municipal government have the power to prohibit position and content of advertisements. They can be torn down or replaced with contents approved by BOCOG. Furthermore, advertising banners hanging outside buildings are also within the scope of control. Within controlled Olympic areas, unauthorized advertising material containing names or logos of business establishments is not allowed to be distributed, including advertising by a group of people wearing the same logo on their clothes. BOCOG has the right to requisition or block this marketing as deemed necessary. The rights of BOCOG trace back to a promise made to the IOC by the Beijing municipal government. The standard adopted by the IOC as to whether an advertisement is inappropriate is not based on legal grounds. If ambush marketing is suspected, action can be taken against it.  

Li Yanjun said, “Ambush marketing has never been a pure intellectual property issue. Thus, when dealing with this problem, it is not enough to solely rely on IP law. So we will adopt legal non-law enforcement methods to prevent and handle ambush marketing problem to a maximum.”

The non-law enforcement methods Li Yanjun refers to also include control of large events. From May 1, 2008 to the end of the Paralympics Games, non-Olympic related event have been disallowed without permission from BOCOG in Beijing and other cities with Olympic venues. Li Yanjun explained, “Before and after the Olympics, holding events that could affect the Olympic Games in Beijing and the other cities, especially the launching of new products or corporate annual conferences, will all be included in the controlled areas. The effects we are talking about here also include safety issues and not to mention the prevention of ambush marketing.”

With the possibility that some companies ask their employees to go to the venues wearing uniforms or clothes with a company’s name or logo, Li Yanjun explained that most likely these people would not even make through the first check point. Even if they made it to the stands, they would be stopped. Olympic tickets state, “Unauthorized promotional activities, displays, or money collections are prohibited in the venue… Distributing promotional samples or products with company logos is prohibited,” and will be used as the legal basis for security measures.  

Ambush marketing activities are often unforeseeable. Therefore, efficiency when dealing with Olympic IPR infringements and ambush marketing is more important than the enforcement scale. According to Li Yanjun, every law enforcement department has prepared Olympic contingency plans, in order to handle violations in a timely manner. BOCOG is detecting ambush-marketing schemes through channels including self-inspection, complaints filed by Olympic sponsors, law enforcement agencies, and reports from the public. To nip the violations in the bud, BOCOG will also directly monitor high-risk areas and media.  

Thus, we can see that with the help of these methods, BOCOG no longer “sits back and pontificates.” However, Li Yanjun stressed the following view — that the sole purpose of anti-ambush marketing is to protect sponsors interest. He said, “On top of our agenda is to guard the dignity of the Olympic Games and guarantee the solemnity, standardization and fairness of the Beijing Games. We have to make sure that the companies supporting the Olympics are getting what they have paid for and receiving fair treatment. We won’t let these Olympic supporters down.”

Li Yanjun compared China’s Olympic bid with that of China’s effort to enter the WTO. China hoped that by holding the Olympic Games, international rules and concepts of fair play and business ethics would be appreciated and accepted by more people. “The Chinese government intends to hold high quality Olympic Games with Chinese features. Therefore, instead of adopting the bottom line as the highest standard, IPR and related interests’ demand outstanding protection.”    

Of course, China being a huge country, ambush-marketing activities has appeared not only in Beijing. Li Yanjun elaborated, “For nationwide ambush marketing, we will adopt the ‘essential but limited’ policy, focusing the work force on preventing and punishing violations in the key areas, periods, and industries. While fulfilling China’s international commitment, the current situation of law enforcement and laws cannot be ignored.”   

The Initiative soon brought changes. The Li Ning logo could be fading out of CCTV 5 before the start of the Olympic Games. It is stated in the Initiative that “the Olympic channels should choose Olympic sponsors as cooperative partners or program partners; concurrently, product images by non-Olympic sponsors should not be displayed on Olympic channels.” A week after the proposal was issued, journalists and program guests appearing on CCTV 5 no longer wore the Li Ning logo on camera. However, moderators and sportscasters continue to wear the logo. It remains unclear whether the Li Ning symbol will last during the Olympic Games.

The Initiative also states, “From August 1 to August 27, 2008, without special authorization or permission, any advertisement with athletes, coaches, or officials participating in Olympic events as spokespersons should be temporarily put on hold.” As a result, Nike advertisements with athletes as spokespersons could cease during this period.
                                                                                         (Translated by Elina Cai)