by Rodrigo de Assis Torres
August 10, 2016
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Rodrigo de Assis Torres
Marina Alcantara Camarão
Rio the Janeiro Olympic Games will officially begin a few days after the edition of the present article. Brazil is facing several challenges and working hard to successfully host this unique event.
The Olympic Games in Brazil, just like the Soccer World Cup in 2014, call the attention of the Brazilian Courts to a peculiar practice known as ambush marketing. Also designated by the expression ambush advertising, it usually resumes the strategy of no sponsors in ambushing an event to compete for exposure against official sponsors.
The major problem caused by ambush marketing resides exactly in the fact that companies using, directly or indirectly, the event to develop their business did not make any kind of investment and did not provide any support to the event. On the contrary, the official sponsors pulled out considerable efforts and money and are strongly jeopardized by this, why not, illegal practice.
Ambush marketing is clearly a type of unfair competition (repressed by article 195, III, of Brazilian Intellectual Property Law) and also characterizes undue enrichment on the basis of third parties´ efforts and investments, classified as a wrong under article 884 of Brazilian Civil Code).
Indeed, the Brazilian Superior Court of Justice has already analyzed some cases in which non sponsor parties tried to take advantage of official events, conveying to the market the impression of being an official sponsor and obtaining an undue benefit from the investments made by authorized advertisers. The Special Appeal nº 1.335.624 deserves greater emphasis.
In the mentioned Special Appeal, the discussion addressed the unauthorized use of the Brazilian team image and the wrong association with a company that was not the official sponsor of the team. At that time, Brazil was about to be selected to host the 2014 Soccer World Cup, reason why any relation with the national soccer team would implicate on a huge spotlight and commercial advantages.
It so happens that only the official sponsors are allowed to make use of the Brazilian soccer team image, and this was not the case of the Defendant. When judging the Appeal, that was exactly what Honorable Justice Ricardo Villas Boas Cueva of the Superior Court of Justice concluded: the situation under discussion would be of “clear prejudice, since beyond the usual commercial practice only official sponsors are authorized to use the image of the Brazilian soccer team.”
Now, once Brazilian Courts have faced some big discussions around ambush marketing due to the experience with the 2014 Soccer World Cup, new challenges are coming and may emerge in the Olympic Games. The questions will be: who are the official sponsors? Who can make use of the Olympic Game prestige and not ambush the event?
The situation is not as simples as it appears to be, but a careful analysis evidences abusive use and the improper benefit from the official sponsor’s efforts and investments, what should be dully repressed by the Judiciary system.
As a matter of fact, a very recent decision issued by the Court of Appeals of Rio de Janeiro in the Interlocutory Appeal nº 0032036-37.2016.8.19.0000 can perfectly illustrate the scenario that the Court may face during the following days, when the games will occur in the city.
This Interlocutory Appeal was lodged in the context of a lawsuit with an object similar with the one analyzed by the Special Appeal abovementioned: the cease of use of the Brazilian Soccer team official uniform by a company that was not the official sponsor. It means that the company was trying to look like a supporter, although it was not.
The Court of Appeals recognized the ambush marketing and granted the preliminary injunction to prohibit the irregular use of the Brazilian uniform, ruling that this practice would entail private benefits throughout the use of someone else’s trademark without the proper authorization.
This picture permits us to conclude that the Brazilian Judiciary system is pretty mature to face the challenges ahead, hoping that the Soccer World Cup and the Olympic Games are the first of many to come important international events in our country.