With the kick-off of Euro 2024 just four weeks away, marketing campaigns will inevitably start to pick up pace in an attempt to ride the wave of the nation’s excitement about England’s latest quest for silverware. However, care needs to be taken in such marketing activities to avoid infringing intellectual property (IP) in connection with the tournament and potentially falling foul of associated advertising rules.

Ambush marketing issues

One of the challenges facing major sporting events is the prevalence of “ambush marketing”, which is essentially an attempt by an unauthorised third party to associate itself with the event to piggyback on the goodwill, without paying for the privilege.

Whilst there is no single law in the UK to address ambush marketing as such, there are various rights and rules that need to be navigated by businesses wanting to take advantage of the commercial marketing opportunities presented by Euro 2024.

Protection of UEFA and FA IP

Unsurprisingly, UEFA has registered a series of trade marks around the world to protect the tournament brand, including “EURO 2024” as a word mark (which was filed as early as November 2012 in the UK), as well as a number of figurative marks for UEFA EURO 2024 to protect the official emblems, logos and devices associated with the tournament.

Article 11 of the Regulations of the UEFA European Football Championship[i] reinforces UEFA’s approach towards protecting and enforcing this tournament IP:

“UEFA is the exclusive owner of all intellectual property rights of the competition, including any current or future rights in all types of audio and visual material of the competition, names, logos, visual identities, brands, music, mascots, medals, plaques, commemorative items, trophies and certain key elements of the official match ball design. Any use of the aforementioned rights, any imitation and/or variation thereof and any other reference to the competition (such as by associating the name of an association with the date of a match) requires the prior written approval of UEFA and must comply with any conditions imposed by UEFA.”

In addition, for those that enter into commercial partnerships to become “official global sponsors” of the tournament (including Coca Cola, Lidl and Booking.com to name a few), the value of this investment lives or dies with being able to use certain UEFA IP on an exclusive basis. If any business was free to make commercial use of the tournament branding to advertise and promote its goods and services in connection with the tournament, there would be little reason to invest in such high-profile sponsorship arrangements.

Similar considerations apply for the England National Football Team, with the Football Association (FA) owning various registrations to protect and control the use of marks such as “THREE LIONS” and the national team crest.[ii]

In light of the above, making unauthorised commercial use of these marks (for example, in the sale of tournament related merchandise or advertising campaigns) risks liability for trade mark infringement, copyright infringement and/or passing off (amongst other things) and diminishes the substantial investment made by rights holders.

Advertising rules

In addition to IP infringement risks, the UK Advertising Codes include various rules that marketers need to navigate when launching advertising content in connection with the Euros. For example:

• Implying an official endorsement with UEFA and/or the England National Team in advertising content will likely fall foul of the rules on misleading advertising.[iii]
• Creating advertising content that mocks other countries involved in the Euros (including other home nations or historic footballing rivals) will often be seen as a harmless, humorous marketing tool (particularly on social media platforms). However, marketers need to balance this goal with rules that prohibit marketing communications that are likely to cause serious or widespread offence (and the Advertising Standards Agency (ASA) has specifically highlighted that this includes adverts that portray racial, cultural or national stereotypes).[iv]
• Advertising campaigns involving alcohol will inevitably be attractive against the backdrop of football fans enjoying the summer of Euro 2024. In such cases, it will be important to ensure in particular that: (i) excessive drinking is not encouraged; (ii) adverts do not suggest that alcohol can change moods or enhance confidence, mental or physical capabilities or performance, popularity or sporting achievements; and (iii) adverts do not show alcohol being handled or served irresponsibly.[v] 

A failure to abide with these rules could result in sanctions for non-compliance (including referrals to enforcement bodies such as Trading Standards and Ofcom).

Avoiding marketing own goals: practical guidance

The use of tournament IP and misleading marketing communications will be carefully monitored in the lead up to and during major sporting events and rights holders will not hesitate to tackle such infringements.

Accordingly, businesses wishing to take advantage of consumer behaviour trends around these events need to tread carefully to stay on the right side of the line. To minimise the risks, businesses engaging in these campaigns would be advised to:

• Ensure that marketing campaigns are not presented in such a way so as to falsely imply official partnerships with, or endorsements by, tournament rights holders. For instance:
  • The use of St George’s flags and generic football or country-related images to promote product campaigns in stores, or using original film content in adverts of football fans celebrating together would generally fall on the right side of the line (depending on exactly how it is presented).
  • By contrast, any commercial use of registered words (e.g., “EURO 2024”, “THREE LIONS”), emblems, badges images/footage from the tournament, and/or use of individual player image rights, will likely be seen as infringing use and/or breaching the advertising codes (subject to certain exceptions).
• Follow intellectual property guidelines published by tournament organisers, which (whilst not a substitute for seeking specific legal advice) often provides an indication of the type of activities that will be prohibited.
• Give careful thought to the content of advertisements that relate to sensitive subject matter such as alcohol promotion relating to the football and mockery of protected groups.
• Take advice on specific marketing and advertising campaigns prior to launch, to ensure that they are compliant with advertising codes and avoid IP infringement risks. For example, there are ways in which copyright material can be used in adverting for the purposes of parody, but this does not extend to making unauthorised use of third party trade marks.
• Brief the marketing teams that create and release content across advertising and social media platforms, so that there is a clear internal understanding of what is permitted. Even using hashtags in social media content posted by a company account (e.g., #EURO2024 #THREELIONS) could infringe trade mark rights where this is being used for a commercial purpose and creates a commercial association between the business and the tournament.

Summary

Tournaments such as Euro 2024 that captivate the nation provide a platform for brands to enhance their exposure and benefit from short term trends in consumer behaviours. There are ways in which these brands can celebrate the tournament without using protected IP, or otherwise creating an unauthorised commercial association with the tournament or its teams. 

However, the seemingly innocent release of limited edition products or advertising campaigns that are intended to be supportive of the tournament or the England National Team could nevertheless infringe third party IP by straying the wrong side of the line, so it is important to avoid unlicensed use of these protected brands and to carefully assess the overall impression created by a marketing campaign.

[i] https://documents.uefa.com/r/Regulations-of-the-UEFA-European-Football-Championship-2022-24-Online

[ii] https://www.thefa.com/about-football-association/brand-protection

[iii] https://www.asa.org.uk/type/non_broadcast/code_section/03.html

[iv] https://www.asa.org.uk/advice-online/offence-general.html

[v] https://www.asa.org.uk/advice-online/alcohol-general.html