KEY POINTS:
As one Rugby World Cup campaign approaches its culmination in France this week, the rules for the next one - the commercial sponsorship campaign when New Zealand hosts the Cup in 2011 - are already being set in place.
Parliament has passed the Major Events Management Act,
designed to prevent ambush marketing and to enhance the rights of event organisers and official sponsors supporting large-scale events in New Zealand.
This law was created specifically with the Rugby World Cup 2011, the Cricket World Cup 2015 and other high profile sports tournaments in mind. Such laws are not unique: the 2000 Sydney Olympic Games and the Cricket World Cup in the West Indies are just two examples that have had special protection.
New Zealand has chosen to deploy "umbrella" type legislation that is not specific to any event, but can be triggered in future by the Economic Development Minister whenever suitable. The first occasion to use it might be the Netball World Championships in November or the Under-17 Women's Football World Cup next year.
Ambush marketing is where an official sponsor finds that another company attempts to gatecrash the party by associating itself with the event or free-riding on the publicity.
Corporate ambush attempts have been around for years, notably in the sports shoe wars where Nike, Converse, Reebok and adidas competed to undermine each others' official sponsorship of successive Olympic Games with increasing creativity. At the 1996 Atlanta Olympics, Nike smothered the roads around the stadium with billboards and handed out paper swooshes to be waved inside, undermining Reebok's official sponsorship.
The difference these days is that the scale, grandeur and media hype around big events like the Rugby World Cup has increased the value of official sponsorship rights and the revenue to organising bodies.
Since sponsors pay handsomely to support these events, organisers now demand that to win the rights to global tournaments, host countries must take action to protect their sponsors.
The new Act meets this promise to organisers in attacking ambush marketing by association and by intrusion, but also includes issues such as ticket scalping, pitch invasion and unauthorised use of Olympic and Commonwealth Games words and emblems. Much of the debate has been about banning streakers and ticket touts, but it is the restrictions on advertising that will affect business the most.
When is an event considered major enough? The Economic Development Minister has wide discretion to decide which events are worthy of special protection above and beyond existing laws like the Trade Marks Act and Fair Trading Act.
There are set criteria to meet: the event must be at least partly held here, and the organiser must be capable of successfully and professionally managing it. Other factors include the degree of overseas interest in the event, or sporting, cultural, social and economic benefits for New Zealand.
The Government has emphasised that the Act is aimed only at truly global events and should not extend to lesser events or things that New Zealand hosts annually. But regardless of current political intentions, there seems plenty of potential for furious lobbying in future.
The Minister also gets to declare: what major event words, phrases and emblems will be protected; how long the protections will be in place; the exact scope of "clean zones" and "clean transport routes" (areas where advertising is banned).
Of course, the Minister will be guided heavily by the event organiser who applies for these "declarations". If successful, that organiser then gains tremendous commercial power to authorise individual activities that would otherwise breach the ambush marketing provisions.
Ambush marketing by association is advertising, representations or conduct implying or likely to suggest an "association" between the major event and your brand or goods or services.
"Association" is a wide concept that includes implying a connection, approval or commercial arrangement with the event. Advertising that links a product with the major event even indirectly (for example, by using images of trophies or teams involved in the tournament) will be at risk. A promotion that gave away tickets as prizes might be seen as ambush. And use of special declared "words and emblems" is deemed to be automatically in breach, unless an exception applies.
Ambush marketing by intrusion is taking advantage of the assembled audience to promote your brand in a specific location. The Minister can declare clean zones (essentially a match venue and immediate surrounds), clean transport routes (extending up to 5km along key motorways, state highways and railway lines) and clean periods during, before and up to 30 days after the event.
Private land and buildings are not included, but signs on private land may be in breach if they are visible from within the zone.
Street trading and advertising of any type in clean zones is banned unless it has written authorisation from the major event organiser or unless an exception applies. Handing out merchandise or arranging billboards or aerial displays will earn a fine up to $150,000.
Since this law impacts on sweeping areas of normal commercial activity, there have to be numerous exceptions to prevent ordinary firms being wrongly spear-tackled. A key exception is for an existing business carrying on its ordinary activities. So if a local dairy has had L&P signs hanging outside for years, no problem. But if it puts up new signage specially timed to coincide with the event, it may not be safe.
The array of exceptions includes expressions of personal opinion, reporting news or information, or honest use of a place name, your own name or a trade name. And, if you have written approval from the event organiser, you will be fine.
It remains to be seen exactly how broad these defences really are and just how vigorous the enforcement tactics might be. It will be a balancing act, and two particular issues could usefully be kept in mind.
First, not all cunning marketing tactics can be stopped: at the Barcelona Olympics, Michael Jordan was not allowed to wear Nike gear, but as he received a gold medal he cleverly covered up the Reebok logo on his official team tracksuit.
And second, aggressive enforcement by organisers and the sponsors they are protecting might risk jolting the Kiwi public to really get in behind a creative, subversive, witty (and unauthorised) brand.
* Gary Hughes is a principal at Chapman Tripp, specialising in trade practices law.
