Ambush Marketing: Dissecting the Discourse

Abstract

This article discusses the problematic discourse in which scholars and corporate complainants such as the International Olympic Committee have discussed the issue of ambush marketing. It argues that those who persistently complain about ambush marketing have wielded the term far too liberally, and thus a great deal of confusion exists between the generally accepted definition of ambush marketing and the reality of the circumstances surrounding the numerous marketing strategies that the term is commonly used to describe. While much of the current literature on the subject concludes that the existing state of the law in the United States is not equipped to handle the alleged problems that ambush marketing poses, this article concludes that American trademark and unfair competition law adequately balances the competing interests at stake in ambush marketing cases and should serve as a model for the rest of the world to follow. This is a relatively short article that exposes the fundamental flaw that pervades most analyses of the alleged threat posed by ambush marketing: that while critics argue that so-called ambush marketing tactics are particularly threatening because they cause consumer confusion as to a non-sponsoring company’s association with an event, few ambush cases have ever been litigated primarily because complainants have not even been able to meet the Lanham Act’s low-threshold of proving any such likelihood of consumer confusion.