Ambush Marketing: European Under - 21 Tournament
by Ricardo Henriques
The Portuguese Government has published another legal diploma (Law-Decree Nr. 84-A/2006, of May 19th) aimed at the combat of ambush marketing. Notwithstanding several opinions which considered as unconstitutional Law-Decree Nr. 86/2004, of April 17th, aimed at the combat of ambush marketing of Euro 2004, the Government decided to once more protect companies which have invested in sponsorship agreements.
In fact, the Constitutional Court has already ruled on Law-Decree Nr. 86/2004, of April 17th, Decision nº 358/2005 de 6-7-2005 (P. 138/2005) of July 6th, 2005 (published in the Official Gazette on October 20th, 2005, stating that said law does not violate any principle of the constitution.
Law-Decree Nr. 84-A/2006, of May 19th defined the legal protection to which the names and symbols of the European Under – 21 Tournament 2006 were subject to, as well as the mechanisms that reinforce the combat to any form, direct or indirect, of illicit use of the benefits resulting from this sporting event.
The final stage of this tournament which has taken place from 23rd of may to the 4th of June was protected by these measures which were destined to insure that the names and symbols, already created or to be created, to designate this event would not be used, for advertising or commercial effects, by entities that improperly intended to benefit of the associated values to this sporting event.
As such, these measures allowed reacting against anyone that, by any means and not being authorized to associate its trademarks and other commercial distinctive signs to this event, might endanger its prestige or may take advantage from it to, improperly, obtaining the same notability and promotional benefits given to the official sponsors.
Regardless the area of activity or the products and services at stake, when, partially or all together, said products and services reproduced or imitated the names and symbols reserved to the European Under – 21 Tournament – Portugal 2006, or that might be confused or associated with theses, they would not be admitted to formal registry and it’s use would be forbidden, including the advertising or disclosure of corporate name and corporate entities names or other entities; brands, names or emblems of establishment, logos, drawings or models or any other rights of industrial property; and titles of publications of any kind, periodical or not, or from other work protected by copyright.
In this way, the direct or indirect use, by any mean, of a corporate name, denomination, trademarks and other commercial distinctive signs by anyone that hasn’t obtained authorization by the entities responsible for the holding of the final stage of European Under – 21 Tournament – Portugal 2006, or that would suggest or create the false impression that it was authorized or that they are, by any way, connected to the event, was forbidden.
Said prohibition was also applicable, in the cases in which the promotion of products, services or establishments by an entity that, not using any of the means aforementioned and still acknowledging not being associated to the European Under – 21 Tournament – Portugal 2006, were, yet, able of creating a risk of association to the event or to the respective promoting entities, independently of the place or moment in which they occurred.
The use of the denominations and symbols reserved to the European Under – 21 Tournament – Portugal 2006 or any use, direct or indirect, of a sign that was able to create the false impression that it was a sign associated to the event, if performed with advertising or commercial goals and without authorization form the entity or entities referred, constituted an administrative offence punishable with fine from 1.000 to 3740 euros, if made by an individual, or with a fine of 4.000 to 44.890 euros, if the offender was a corporate entity.
As usual, the inspection of the compliance with these rules was to be made by the Autoridade de Segurança Alimentar e Económica (Economical and Food Security Authority) (ASAE), the Inspecção-Geral das Actividades Culturais (General-Inspection of Cultural Activities) and the Instituto do Consumidor (Consumer Institute).
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by: Ricardo Henriques
Abreu, Cardigos & Associados
Tel: (351) 21 723 18 00