Ambush Marketing: Wearing the Dutch Dress Would Be Permitted in the Netherlands
During the World Cup 2010, Bavaria has caused a great upheaval
with the Dutch Dress. After the Netherlands - Denmark match, two
'Bavaria babes' were even arrested by the South-African
authorities. They risked a prison sentence of six months maximum
for developing commercial activities in a soccer stadium. It was
not exclusively their own initiative to perform a striptease in a
group in the stadium: it is said that Bavaria had paid their
tickets and accommodation costs and the films of the stripping
'Bavaria babes' were placed on YouTube. This is called ambush
marketing: profiting from the media attention during a certain
event as a non-sponsor.
The '2010 FIFA World Cup South Africa By-laws'
In Johannesburg a special statutory provision
applies (the '2010 FIFA World Cup South Africa By-laws') on the
basis of which ambush marketing is prohibited. The maximum fine is
10,000 Rand. This fine may still be increased by a maximum prison
sentence of six months. South-African regulations provide for a
comprehensive description of the offense 'ambush marketing'. It
includes 'public relations activities (…) intended to gain a
promotional benefit from it to the prejudice of any sponsor, but
which is undertaken by a person which has not been granted the
right to promote an association with the Competition'.
The regulation became effective specifically
for the World Cup 2010, and was established by the South-African
authorities at the request of FIFA. By applying criminal-law
sanctions to ambush marketing, the South-African legislator has
used the heaviest legal remedy. In the end, the South-African
criminal judge did not pronounce a sentence in this matter. After a
great international outcry, a settlement was reached and the case
was withdrawn at the request of FIFA.
The Legal Situation in the Netherlands
Together with Belgium, the Netherlands is a candidate for the World
Cup of 2018 or 2022. The Bid Book for this event was recently sent
to FIFA. FIFA wants all kinds of ambush marketing to be prohibited,
and insists that a fine should be paid to it immediately in the
event of any violation. FIFA inter alia
wishes to prohibit: 'ambush marketing
(…) or marketing activities through which one targets the
audience of the Events, including ticket holders, in order to
gain exposure for its businesses, products or services without
authorization from FIFA'. The Dutch government
has rejected this requirement with the
following words: 'There is no specific "ambush marketing
law" in Dutch and Belgian legislation. We consider "ambush
marketing" to be covered by a) intellectual property laws, more
specifically the copyright and trademark law, b) unfair
competition law, more specifically misleading and comparative
advertising law and the unfair commercial practices law, and c)
general tort law.'
In the Netherlands ambush marketing is not punishable by
imprisonment. Civil actions can be brought on the basis of
intellectual property rights (trademark law or copyright law), but
this is often very hard. This does not mean that everything is
allowed in the Netherlands. The individual supporter can do many
things, as long as no specific restrictions have been stipulated in
the conditions pertaining to the tickets. In the past, Bavaria has
already been forced once more to cease its actions (the
distribution of the Leeuwenhose during the World Cup 2006) around
the soccer stadium. This prohibition did not apply to individual
fans who wanted to get into the stadium in their
Leeuwenhose; they were allowed to by the Court. A fan who
is wearing the clothing of a party that is not an official sponsor
cannot be banned from the stadium. In wearing your own clothing
there is an element of personal freedom of expression, which is a
basic right that may only be limited in special circumstances. Even
if the World Cup is sponsored by Adidas, you can always wear your
Nike shoes to a soccer match. Do not forget that also in the field
there are many soccer players playing on their shoes sponsored by
Nike and in their sponsored outfits. It is true that in the stadium
FIFA may set requirements in the conditions pertaining to the
tickets, but if the fans cannot wear the clothing of their own
choice anymore, this would go too far. Therefore, wearing the Dutch
Dress in the stadium would simply be allowed in the Netherlands. On
the other hand, a company like Bavaria that knowingly and willingly
- and in the words of the Dutch court, 'deviously' - tries to
circumvent the ban on advertising in a stadium, can be proceeded
against under Dutch law.