Strategic branding - The difficulty of the term and trademark "Fußball WM 2006"

Table of contents

Bibliography

1. Introduction

2. Course of investigation

3. The importance of branding

4. The event-trademark
4.1 The distinctive character
4.2 The Olympic Games

5. Strategic Branding

6. Ambush-Marketing

7. The World-Cup-Saga
7.1 Worldcup 1994
7.2 Worldcup 2006
7.2.1 Decision of the Higher Regional Court of Hamburg
7.2.2 Decision of the Federal Patent Court
7.2.3 The decision of the Federal Court of Justice

8. The european effect: decision of the Office for Harmonization in the Internal Market (OHIM)
8.1 The Community trademark
8.2 Decision of the OHIM

9. Conclusion

Bibliography

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1. Introduction

The arrangements for the Football World Cup in South Africa next year are working to their capacities and again pictures of the World Cup 2006 in Germany appear, the emotional event that enjoyed a high degree of attention not only in Germany, but also worldwide.

South Africa as well is not only expecting an image improvement by many foreign visitors and the worldwide attention, but also further investments in the country. However, not only the countries are trying to adorn themselves with the highly anticipated event, but it is also tempting for companies to profit from it.

The Football World Cup ushers a gigantic marketing machinery where particularly industries such as tourism, catering, culture and media are hoping to gain massive revenues.

Yet the commercialisation of this event does not only bring marketing managers, but also lawyers on board, because the major part of the earnings of those events are not formed by the ticket sales, but by the sponsorship money.

Since the 1980s, sport-sponsoring has increased constantly, due to the fact that companies are hoping to gain an considerable increase in publicity and corporate image benefits.

Given the huge expenses, it is not surprising that not only the organisator of the Football World Cup, namely the FIFA^[1], but also the sponsors are longing for maximized exclusiveness of their trademarkrights.

Along with this exclusiveness comes the concern about competition law matters, which are also adressed under the behaviour of Strategic Branding.

However, there is not only an economic side to Strategic Branding, namely to improve the long-term profitability of brand strategies by building, measuring and managing brand equity, but also a legal aspect where the focus lies on maxing out the possibilities of trademark law to the detriment of competition law, mainly in cases where the distinctiveness of a trademark is doubtful.

This paper will deal with the problem of Strategic Branding in cases of eventmarks, using the example of the trademark “Fussball WM 2006” to illustrate the general problems arising from the application of eventmarks.

2. Course of investigation

First, this paper gives a short overview about the importance of branding for companies, bearing in mind the increasing importance of trademarks in a market full of congeneric goods and services. Furthermore, it will deal with the concept of Strategic Branding used by companies to maximize the profit of their trademark and the problems which will occur in case of a so-called “eventmark”, taking into account the impacts on competition law. Subsequently the attention will be turned to the idea of ambush-marketing as a way to benefit from an event mark, using the example of the german football championship in 2006 and the corresponding trademarks “Fussball WM 2006” and “WM 2006”. This example will be looked at in detail by analysing the decisions by different courts on that particular trademark.

3. The importance of branding

Branding itself has been around for centuries as a way to simply distinguish the goods of one producer from those of another. According to the American Marketing Association, a brand is by definition a “name, term, sign, symbol or design, or a combination of them, intended to identify the goods and services of one seller or group of sellers and to differentiate them from those of competitiors.”^[2]

Certainly, most companies tend to see more in a brand. They refer to them as something that has actually created a certain amount of awareness and reputation of the product and accordingly the firm in the marketplace. A brand can not be put on a level with the product, because it if anything gives the product a meaning and defines its identity. The real value of a brand comes from its ability of continously adding value and delivering profits by creating consumer loyalties.^[3]

Due to this facts, companies are realising, that this “brand equity” has to be managed, nourished and controlled.

Therefore it is, from the financial point of view, essential especially for organisers of an event, to develope a marketing concept that integrates not only merchandising, but also sponsoring as a method of proper fundraising, allowing to come up with the money for the funding of such an event.

The profit of such fundraisings is quite predictated on the effort of getting the image and the recognition value across to the consumer so that an additional financial effect is gained.^[4] A big part of this communication task can be achieved by using a trademark.

Especially sports marketing has increasingly be aiming at this goal in recent years, trying to create some mental structures by means of which consumers are able to organize their knowledge about a certain product or company. In this way, marketing managers are able to clarify consumer´s decision-making process, which is of high value to the company. By analysing the “image” of a trademark, companies are able to boost brand loyalty, which leads to predictability of the market and can, in terms of competition law, create barriers to entry, making it difficult for other contestants to enter the market.^[5]

Sports marketing in particular is meant to activate additional benefits, due to the fact that the attractiveness of an eventmark bases on the potentiality of identification and the huge prestige which comes along with sports mega events and therefore lends itself to an image enhancing.^[6] Event-related symbols trigger the same associations as the event itself for consumers and therefore have to be carefully embedded in the marketing strategies. Also so-called “experience-goods” have become highly sophisticated in recent years, employing packages of marketing measures to build up some kind of consumer-loyalty, in order to meet for example ticket sales regardless of the actual performance of a sportsteam.

4. The event-trademark

Big events, such as the Football championship or the Olympic games are fascinating people and create an attractive advertising enviroment, which is one of the principal reasons why these activities are still financially rewarding, because only a small amount of the actual costs can be collected just by entrance fees. It is much more lucrative if the organiser is able to fully make use of the event and the emotions linked to it by assigning the right to make reference to the event to official sponsors, and, for the sake of profit, always keeping hold of the reins. This is in practice best possible by using a trademark related to the event. Thereby the protection of logos and emblems seems not problematic at all, because they can be registered long before the event and will normally cover all kinds of goods and services.^[7] But organisers seem to have switched over to using the name of the event as such as a trademark. Strategic Branding somehow requires those event-trademarks, in order to inhibit all kinds of ambush marketing, but this may also clash with the principle that nobody shall be able to monopolize a general notion by way of a trademark registration and raises competition law issues, which are also dealt with under the term Strategic Branding to be discussed subsequently.^[8]

[...]

^[1] Fédération Internationale de Football Association.

^[2] Taken from: Bamert (2005), p.22.

^[3] Kapferer (2008), p. 4, who refers to brands as not only part of the company´s capital, but also as part of the intangible assets.

^[4] Gaedertz, WRP 2006,526, p. 526.

^[5] Lane Keller (2007), p. 9.

^[6] Pechtl (2009), p. 4.

^[7] Kur (2008), p. 200.

^[8] Reinholz, WRP 2005,1485, p. 1488. However, the executive director of the FIFA stated, that the World Cup is “ just not common property, but a private event of the 207 Football Associations.” ; dpa-report of 25.10.2005; [available at:http://de.sports.yahoo.com/051025/27/5slq.html.]