A very happy World IP Day to our readers! As the IPL frenzy returns, so does the battle for consumer attention, this time fought as much through witty notifications and real-time campaigns as on the cricket field, and raising familiar questions about the legality and limits of ambush marketing. In this post, Anooja Padhee and Jyoti Panigrahi argue that non-deceptive ambush marketing reflects creative competition and that IP law should protect rights without stifling humour, parody, and innovation. Anooja is a Partner with K&S Partners. She has over 12 years of experience in dealing with trade marks, copyright, and Geographical Indication matters. She may be contacted at anooja[at]knspartners[dot]com. Jyoti is an Associate at K&S Partners with over three years of experience in intellectual property law, and a keen interest in copyright, trade marks, and the evolving role of AI in shaping the IP framework. She may be contacted at jyoti[dot]panigrahi[at]knspartners[dot]com.
Crashing the Game, Not the Law: Ambush Marketing and IP Law
By Anooja Padhee and Jyoti Panigrahi
The annual mania surrounding the cricket league, the Indian Premier League (IPL) has arrived in India in full swing yet again. The competitive spirit surrounding the IPL is not just limited to the sport but also to the myriads of brands that are vying for the attention of the audience. Every time you come across a witty, perfectly timed notification from food delivery apps, nudging you to “order before the next over ends” or “when the boys hit a 6, you get 66% off,” or celebrating a last-ball finish with an unmissable discount, you are being drawn in. These notifications do not use any official logos or claim any association with the IPL, yet they tap directly into the excitement of the match unfolding on your screen. This is no coincidence. In fact, it is a carefully thought-out creative strategy. In many ways, this is where brands become part of the game without ever being official partners.
This is ambush marketing, where campaigns are launched around a major event, typically in the sporting context, by companies that are not official sponsors or partners, to leverage the popularity of the event for their own promotion. While the term is commonly used, it does not have a settled legal meaning and can cover a range of practices. Ambush marketing often carries a negative connotation, and legal concerns have almost always been raised when such marketing disrupts an official sponsorship or association of a brand with an event. For instance, parodical advertisements without using any official logos of an event (E.g. Amul’s topical ads especially during big matches) are kosher. However, using phrases like “official IPL offer” or use of brand names or logos, without authorization may likely invite legal trouble. Hence, creative, parodic, non-deceptive references to an event must be distinguished from those that falsely suggest an official association, to avoid legal actions.
One of the most well-known examples of this strategy is the ‘Nothing official about it’ campaign launched by PepsiCo during the 1996 Cricket World Cup after losing out on the official sponsorship to arch-rival, the Coca-Cola Company. The campaign had cricketing legends such as Sachin Tendulkar and Mohammed Azharuddin casually sipping a Pepsi drink while saying that there was ‘nothing official about it’. While one saw hoardings and bottles of the official sponsor, Coke, during the match, it was Pepsi that stole the show with its quirky and memorable campaign.
The authors’ take is slightly different from the usual criticism that ambush marketing is subjected to (see, for instance, here, here, and here). With the rise of Artificial Intelligence (AI) and more creative forms of advertising, today, brands can engage with consumers in real time during such mega events, with sharp and catchy content. Many such campaigns, especially those that are non-deceptive and not disparaging, are not unfair, but simply creative. Trying to restrict this avenue through intellectual property (IP) law would risk “ambushing” creativity and innovation itself. This post, therefore, argues that the law should facilitate such creativity within its existing boundaries. Mere reference that is not disparaging must not be curtailed, and a delicate balance must be struck to ensure that genuine IP rights of companies are not adversely impacted.
Across the IPL, Fédération Internationale de Football Association (FIFA), the Super Bowl or even the Olympics, brands invest heavily to grab exclusive attention through IP or sponsorship agreements, yet IP laws do not necessarily protect exclusivity in attention. While some describe ambush marketing as an unquestionably unethical business strategy, others view it as smart marketing and a recognizable exercise of competitive creativity. Unsurprisingly, many companies seek redressal of their grievances in this regard through legal channels. The direct grounds of challenge typically include disparagement, misrepresentation, brand dilution, passing off, and unfair competition. Let us examine these grounds in detail.
Trademarks Laws
Under the Trade Marks Act, 1999 (TM Act), trademark protection is primarily concerned with consumer confusion. Right holders enjoy exclusivity in their brands and their unauthorized use could amount to infringement of these exclusive rights. However, infringement is not triggered by mere reference, but by misleading use that causes confusion or takes unfair advantage. In Tata Sons Ltd. v. Greenpeace International, the Delhi High Court, had to decide whether use of the name “TATA vs Turtle” for a game critiquing TATA’s port construction project, would amount to infringement. The court clarified that denominative use of a trademark does not constitute infringement in the absence of misrepresentation and deception. The Court stated that “if the user’s intention is to focus on some activity of the trademark owners, and is ‘denominative’, drawing attention of the reader or viewer to the activity, such use can prima facie constitute ‘due cause’ under Section 29 (4), which would disentitle the plaintiff to a temporary injunction.”
In Royal Challengers Bangalore (RCB) v. Uber India Systems Pvt. Ltd., the Court held that a humorous advertisement which includes the mere presence of a reference similar to the RCB trademark, such as “ROYALLY CHALLENGED BENGALURU”, is devoid of confusion or commercial exploitation of goodwill, falls within permissible limits and hence, does not amount to infringement. The Court affirmed that the law with relation to dilution of trademarks, leads to the inference that the mere use of an identical mark does not per se create a presumption of infringement under Section 29(4) of the TM Act.
While some believe that the interpretation of the Courts may be unfair to the rights of an event organizer or sponsor, the authors believe that it is consistent with the main tenet of the Trade Marks Act, which is to prevent consumer confusion. Marketing strategies that are referred to as “ambushing” merely reference an event without directly using any IP protected material. There is no indication to the public that the use is endorsed or authorized by the right holder or organizer. In such a case, the primary requirement of consumer confusion is absent, making the act fall outside the scope of infringement or passing off. For instance, a consumer encountering a promotional notification by Swiggy during the IPL season is unlikely to assume that such communication has been authorized by the league, just as Amul’s advertisements referencing major events are generally understood as creative expression rather than claims of official association. In both situations, the absence of confusion indicates that the primary requirement for trademark protection is not satisfied. While such interpretations allow for commercially motivated, indirect references in the absence of deception, this reflects a conscious limit of the TM Act rather than a gap. From the perspective of sponsors, this may appear as free riding however, from a legal standpoint, it avoids the over-expansion of IP rights beyond their intended scope.
In another such instance of alleged ambush marketing in 2018, Freecharge and Swiggy were served cease and desist notices by the management of cricketer Prithvi Shaw for using his achievement in their promotions without authorization. The management had called these acts “disappointing” and said it was “ambush marketing”. It remains unclear whether these companies ultimately took down the impugned content. It is, however, worth considering whether such allegations would have been successful, had the matter been assessed before a Court of law.
Similarly, passing off under Section 27 of the TM Act requires the classical trinity of “goodwill”, “misrepresentation”, and “damage” to be satisfied. An advertisement or notification that rides on the excitement of an event, without claiming official affiliation, clears none of those hurdles. In this context, in ICC Development (International) Ltd. v. Arvee Enterprises, the Delhi High Court held that promotional campaigns referencing a sporting event do not amount to passing off unless they misrepresent an official association. On the contrary, in World Wrestling Entertainment Inc. v. Reshma Collection, the unauthorized reproduction of the World Wrestling Entertainment’s (WWE) registered marks was held to constitute passing off, as it directly traded upon the WWE’s goodwill. Unlike in Arvee, where no logo was reproduced, and no affiliation was implied, the defendants in Reshma Collection reproduced the WWE’s registered marks and protected work, implying an authorization/ endorsement from WWE. While these cases may appear contradictory at first glance, they are reconcilable on closer reading. In ICC v. Arvee, the Court drew a distinction between passing off and ambush marketing, on the basis that while passing off involves an element of “overt or covert deceit”, ambush marketing is merely opportunistic commercial exploitation where the marketer does not seek to suggest any connection with the event, but simply gives its own brand a larger exposure to audiences attached to it. Since the defendants had not used ICC’s logo or the registered mark “ICC Cricket World Cup South Africa 2003,” their use of the words “World Cup” was held to be generic and descriptive. The Court further noted that, unlike “Olympic”, the term “World Cup” is not protected by any international treaty or domestic law, reinforcing its generic nature. The defendant’s conduct, though commercially opportunistic, lacked the element of deception. The Arvee defence, however, operates only so long as the conduct remains descriptive and non-source-identifying.
Copyright Laws
The Copyright Act, 1957 protects original expression, not the underlying event or its public appeal. This distinction limits its applicability in cases involving ambush marketing. A brand that leverages the idea of the event, rather than its protected content, operates in a space that copyright law does not reach. For instance, in ICC Development (International) Ltd. v. Ever Green Service Station, , while trademark passing off and ambush marketing claims based on the use of the “Race 4 the World Cup Offer” promotional campaign ” failed, the Delhi High Court maintained a limited injunction specifically protecting the official event logo denoting black and white stripes of a Zebra as an artistic work under the purview of copyright law.
Comparative Advertising and Parody Claims
With respect to comparative advertising and parody, courts in India have time and again adopted a balanced approach. As seen in Royal Challengers Bangalore v. Uber India Systems Pvt. Ltd, a creative jab or parody is permissible unless it deceives or disparages. The Court stated that “humour is one of the great solvents of democracy; and that the parody must take from the trademark in order to be recognizable, yet fall short of infringement, not carrying any element of deception.” Thus, commentary that does not deliberately mislead or harm the mark owner’s reputation is usually tolerated under freedom of speech granted by Article 19(1)(a) of the Constitution of India.
As Tata Sons Limited vs. Greenpeace International makes it clear, the Court’s role is not to be a literary critic or censor, it merely patrols the boundaries of free speech.
While certain ambush tactics could arguably fall under the purview of the Consumer Protection Act, 2019, as it defines “unfair trade practice”, an action under this Act can only be initiated by a “consumer”, limiting its utility for event sponsors. For instance, a consumer may purchase a product based on a match-linked offer, such as “66% off if a team hits a six”, only to receive a sub-standard product or find the offer subject to undisclosed conditions. Even the Emblems and Names (Prevention of Improper Use) Act, 1950, protects specific symbols such as Olympic emblems, but for most commercial events, no equivalent statutory protection exists.
Ambush Marketing Globally
Some countries have enacted event-specific anti-ambush legislation. Examples are the United Kingdom which enacted the London Olympic Games Act, 2006, New Zealand which enacted the Major Events Management Act, 2007, and South Africa which enacted the Merchandise Marks Act, 2002.
However, India largely relies on traditional IP doctrines and statutes. While IP law is strict and has clear standards when it comes to disparagement, consumer confusion, deception, or unfair competition, it still has an appetite for humour and parody, thereby giving a boost to creativity. This allows for a legal and cultural landscape where ambush marketing is not just possible but often celebrated. Especially in a country like India, which has such a diverse consumer and cultural base, marketing and branding strategies that leverage such events in a creative manner, have the capability to bring people together, irrespective of their loyalties, preferences or cultural, linguistic differences. It is because of this that ambush marketing has evolved into a distinctly digital and culturally attuned practice in India. This raises an uncomfortable question—are sponsors paying for exclusivity that IP law does not, and perhaps cannot, guarantee?
It is easy to view this as a gap in the law that must be addressed to better protect commercial interests. However, doing so would require expanding IP protection beyond its traditional limits, potentially granting event organizers a monopoly over public discourse itself. The case laws discussed above demonstrate that IP law has always struck a delicate balance between the grant of exclusive rights while leaving room for competition and creativity. Extending these rights to instances of non-deceptive, indirect references that do not cause consumer confusion would stretch the law beyond its limits. This remains so even where such campaigns are clearly profit-driven, as the absence of deception continues to be the determining factor. Event organizers are sufficiently protected under the existing legal framework, especially in cases where they establish a likelihood of confusion, deception, defamation, disparagement, and unfair advantage. That said, parody and creativity must be encouraged and not “ambushed” by monopolistic rights. In a world where witty notifications can rival multimillion-dollar sponsorship deals, one question remains: should IP law leave room for creativity, laughter, and competition, or should it strictly grant commercial exclusivity? The authors vote for the former.
