Ambush Marketing

Firstly, it is important to highlight the concept of Ambush Marketing. It is an opportunistic and unauthorized strategy of a given publicity, especially at events and places with agreements for official and exclusive sponsorship. This type of action searches unduly taking advantage through an advertising invasion at certain places and the media.

Our country has no specific legislation to deal with the practice of Ambush Marketing. However, the following regulatory laws are used, to say, Industrial Property Law (Law No. 9.279/1996), Pelé Law (Law No. 9.615/1998), the Olympics Law - Olympic Act (Law No. 12.035/2009.), Overall Law of the World Cup (Law No. 12.663/11), Nairobi Treaty (Decree No. 90.129/1984), the Copyright Law (Law No. 9.610/98), Civil Code (Law No. 10.406/2002), Consumer Protection Code (Law No. 8.078/1990) and Brazilian Advertising Self-Regulation Code of the Brazilian Advertising Self-Regulation Council.

According to the Industrial Property Law - Law No. 9279 of 1996, the LPI, it is Ambush Marketing is considered as a crime. According to the provision of article 195, item IV of the respective Law, it is considered as an unfair competition the use of alien expressions or signs of advertising, or its respective imitation, causing confusion between the products or establishments. The penalty for this crime is three months to one year in prison or fine.1

Also, it lies in the Consumer Protection Code - Law No. 8078 of 1990, the protection against misleading and abusive advertising, according to its Article 6, item IV.2 Furthermore, the Article 37 of the respective Law prohibits the misleading advertising that has information or communication that misleads the consumer into error, a type of practice punishable by imprisonment of three months to one year and a fine.3

The Brazilian Advertising Self-Regulation Code of the Brazilian Advertising Self-Regulation Council, in its article 31, condemns the undue and illegitimate advertising revenues resulting from the "free ride" or "ambush" through invasion of the editorial or commercial space of a communication media.4

This way, it needs some clarification on what the undue and illegitimate incomes would be. These incomes are used through ruse trick, seeking to deceive the viewer/consumer, which are accomplished by the lack of an agreement between the Parties and without prior agreement of the responsible media.

The article 50 of the Brazilian Advertising Self-Regulation Code of the Brazilian Advertising Self-Regulation Council provides about the punishments for cases of Ambush Marketing, within which one can find warning...