Ambush marketing is the practice of sidestepping the intellectual property rights of well-known brands, often through an intentionally vague and clever implication, to benefit from a public perception of an association or connection to the brand, without paying make that association legitimately. This practice is particularly problematic at sporting mega-events, like the Olympic Games. Canada grappled with several ambush marketing issues during the Vancouver Olympic Games (2010); remember Lululemon’s “Cool Sporting Event That Takes Place in British Columbia Between 2009 & 2011 Edition” clothing line?
The potential detriment to brand value from this parasitic practice has become such a concern that the International Olympic Committee (IOC) insists that host countries enact special protection legislation over their marks and Games space. Even with these protections, the issues are challenging to manage from both a legal and PR perspective.
This was the subject matter students from around the world contemplated and debated at the 14th Annual Oxford International Intellectual Property Moot. The moot problem gave law students the opportunity to tackle the legal intricacies of ambush marketing and develop arguments for and against the special legislation within the context of the moot issues.
The moot problem dealt with a fictional sporting mega-event (Similar to the Olympic Games) in the equally fictional jurisdiction of Erewhon (a semi-palindrome of ‘nowhere’). Outside Games venues, an animal Sanctuary with no relationship to the Games, posted four identical billboard advertisements depicting a photograph of two juvenile billibies (fictional animals) atop the tag line “For more fun and games, visit the Erewhonian Animal Sanctuary”. This paralleled the two cartoon billibies that had been designed and launched as the Games’ official mascots. Unauthorized use of billiby indicia and the word Games was prohibited under special Erewhonian legislation (the Indicia Act) designed to create a limited monopoly over use of Games’ marks.
To add to the fun (and games), the problem also included a second respondent who had initially been the illustrator of the Games mascots, but later became dismayed by a perceived hyper-commercialization of the Games organizers. He chose to comment by drawing imposter mascots engaging in distasteful behaviours. He put these images on products and sold them to the public. These actions potentially violated both the Indicia Act and copyright law. Under copyright law, the illustrator claimed statutory defences of fair dealing and a rarely used subsequent works of the artist defence.
The moot is designed in two distinct parts – the written rounds and the oral stage. Approximately fifty teams from law schools around the world submitted facta to the Oxford moot using international jurisprudence and legislation to support their ambush marketing arguments. The organizing committee selected the top twenty-four facta and invited those teams to Oxford for the oral rounds. For the second year running, since Osgoode first participated in the moot in 2015, Osgoode Hall Law School made the cut.
The team had eight weeks to prepare for the oral rounds with the dedicated assistance of their coaches, Stephen Selznick and Stephen Henderson of Cassels Brock, and the Honourable Mr. Marshall Rothstein Q.C.; with this dream team, Osgoode’s international IP mooting squad entered the oral rounds armed with the skills to compete in this illustrious international competition.
This year, the moot had representation from Canada, United States, United Kingdom, Germany, Belgium, Australia, India, Singapore, China and Malaysia. The preliminary round consisted of four moots. Osgoode faced some terrific talent with solid, well-reasoned submissions. At the end of these rounds, the teams, their coaches. distinguished jurists, practitioners and academics joined together for an evening of conversazione, including an enchanting formal dinner in the palatial 19th century Pembroke Hall. At the end of the evening, the top eight quarter-finalists were announced and Osgoode was named amongst this distinguished group.
The team members, Jennifer Davidson, Jacquilynne Schlesier and Colin Lyon, wish to extend their sincere thanks to the dedicated practitioners, professors, administrators and students who assisted in the preparation process: The Honourable Mr. Justice Marshall Rothstein for his insight and feedback; Stephen Selznick and Stephen Henderson for their tireless support throughout; IP Osgoode Founder & Director, Prof. Giuseppina D’Agostino for her continuous encouragement; Andrew Shaughnessy of Torys LLP, David Tait and Rebecca Crane of McCarthy Tétrault; Urszula Wodjtyra, Kevin Siu and Lou Chang of Smart and Biggar / Fetherstonhaugh; Michelle Li, Dr. Carys Craig, Natia Tucci, Faisal Bhabha and Aviv Gaon of Osgoode Hall Law School; and the Osgoode Student Mooting Society. The team is endlessly grateful for your support.
Left to Right: Prof. Giuseppina D’Agostino, The Honourable Marshall Rothstein, Jennifer R. Davidson, Jacquilynne Schlesier, Colin Lyon
Left to Right: Aviv Gaon, Jacquilynne Schlesier, Jennifer R. Davidson, Colin Lyon
Jennifer R. Davidson and Jacquilynne Schlesier are JD Candidates at Osgoode Hall Law School and members of Team Quatchi for the Oxford International IP Moot.