International League of Competition Law
Works 2007 – question B "Ambush Marketing"
The situation in Switzerland
The present report has been elaborated by a some members of the Swiss Group of the
LIDC. It attempts to give a clear picture of the situation prevailing in Switzerland
with regard to ambush marketing. This picture is based on a report which a task force
of the Swiss Group of AIPPI conducted by Dr K. Troller elaborated in August 2006
with regard to a project to legislate on ambush marketing in Switzerland.
2. Ad 1.1 to 1.6
In principle: No-
Switzerland has not enacted specific legislation aimed at expressly prohibiting
ambush marketing. In this context it is interesting to note that in 2006 the Swiss
Department of Economy (and not the Swiss Department of Justice, as this is normally
the case) had proposed to amend the unfair competition law with a new article 3e bis,
i.e. an article in addition to the article prohibiting unfair comparative advertising,
with the following wording:
"Acts in an unfair way who:
refers without sufficient reason in a parasitic way to third parties to their products,
works or achievements and thereby exploits their reputation."
This addition to the unfair competition law had been proposed by the Federal
Department of Economy upon request of UEFA, who wanted to protect the European
Football Championship which shall take place in Switzerland and Austria in 2008
from being commercially exploited by parties who had not been expressly authorized
to do so by UEFA.
The Swiss economic and legal circles were quasi-unanimously of the opinion that a
general prohibition of a referral to third parties was not desirable in Switzerland and
the project for amending the unfair competition law was dropped.
Besides political grounds (mainly that it is not the Swiss legislator's task to increase
the income of an international organization like UEFA at the charge of the Swiss
economy), there was the legal reasoning that a party trying to create wrongly the
impression to be in a particular (sponsoring) relation with a sports event could be
hindered from doing so based on the one hand on the general clause of article 2 of the
Unfair Competition Act (UCA) or on the other hand, based on the specific clauses of
the UCA against passing off (article 3, lit. d), against deceiving statements (art. 3, lit.
b) or against unfair comparative publicity (art. 3, lit. e).
Furthermore, all professional legal circles agreed that in the proposed amendment,
the terms "refers" or "parasitic way" or "without sufficient reason" were not precise
enough in order to reach the attempted goal.
The experts of the Swiss AIPPI Group had proposed a clause against ambush
marketing limited to events in the fields of sport, of culture or of economy and
aiming at protection the organizers of such events (and not the sponsors). The Swiss
AIPPI Group suggested the following clause:
"Acts in an unfair way the party which offers merchandises, works or performances
in connection with an event taking place in the fields of culture, sport or economy,
and thereby gives the wrong impression to be in a commercial, legal or
organizational relationship with the organizer of such event."
This suggestion has not yet been commented by any of the concerned political or
Ad 2.1 to 2.2
UCA protects the interests of three parties, namely the interests of competitors, the
interests of consumers, an the interests of the general public. The first two are private
interests, the third is public.
There are no specific rules to arbitrate ambush marketing conflicts. As a general rule,
common sense shall be applied. There is no possibility to stop use of generic terms,
and references to public events are allowed as long as they do not mislead the public.
More than often, athletes or teams have separate sponsors, different from the sponsor
of the organizer. Therefore, the athletes and teams cannot be stopped from showing
the logos etc. of their sponsors, and spectators and fans would know that the sponsors
of the event are not identical to the ones of the teams or athletes. Therefore,
organizers of events have no other choice than to accept double sponsoring unless
they would risk to loose the best teams and athletes.
The entry tickets do – to the best of our knowledge – not contain any terms
prohibiting the holder from displaying an advertisements. Such contractual
obligations would most probably violate the personal freedom of the spectator and
will hardly get enforced.
The deposit of a trademark confers no better position to the sponsor or organizer of
an event. Trademark and copyright law will help against trademark or copyright
infringement, but it will not help in an unfair competition claim against free-riders.
3. Ad 3
The Unfair Competition Act contains several clauses which can be invoked to
prevent unfair marketing practices. Simple parasitic behavior is not considered to be
illegal to the extent that it is limited to take advantage in a general way of the
reputation of someone or something and as long as this reputation does not enjoy the
protection of a special law like trademark law or that such referral does not violate
the private sphere of someone or the aura of his personality.
According to article 3, lit. a UCA is considered an unfair behavior the slandering of a
market participant (competitor, customer or any other economic actor) and the goods
or works or performances of such actors by making statements which are incorrect,
deceiving or unnecessarily injuring.
According to article 3, lit. b UCA, is also considered to act in an unfair way the
market participant who gives wrong or deceiving indications about himself, his
enterprise, his goods, his works, his performances, his prices, his stocks, his sales
methods or his business in general or who by doing so creates an advantage for third
parties over their competitors.
According to article 3, lit. d UCA, it is unfair to take measures which create a risk of
passing off of the goods, the works or the performances or the business of someone
Finally, according to article 3, lit. e UCA, the fact to compare in a way which is not
exact, deceiving, unnecessarily injuring or parasitic, his person, his goods, his works,
his performances or his prices with those of a competitor or, by acting in such a way,
to create an advantage for third parties over as compared to their competitors, is
considered to be unfair behavior.
Ad 3.2 and 3.3:
The remedies against such behavior are available to every economic actor, like
competitors and consumers. They can choose to start a civil action for injunction and
damages, and/or a criminal action leading to imprisonment or fine. No administrative
sanctions are available.
Both, civil and criminal actions are judged by the ordinary courts.
In Switzerland, ambush marketing is not forbidden as such (compare above).
Referring to an event within a certain radius is basically not considered to be unfair
competition. Even if an event is protected by trademark registrations, the use of such
a trademark is only protected against use as a trademark for the event, not against any
references. E.g., if EURO 08 is protected as a trademark, a butcher may put an ad in
the newspaper saying "I am going to sell frankfurters at every match at the EURO
The athletes themselves may most probably freely refer to the events. However, a
third party may not use the name of the athlete. The latter may be protected by the
rights to his personality.
If the reference does not lead the public to the assumption that the advertiser is an
official sponsor of the event, there is no unfair competition and no prohibited
If the event designation is protected as trademark for all kinds of goods, such as
pastry, food products, shoes or tee-shirts, etc. (most event organizers will organize
such a protection), then the use of the logo will be forbidden by trademark law and
since it is unlawful under trademark law, will at the same time constitute unfair
As ambush marketing as such is not deemed unfair and unlawful, there is no need for
Depending on the circumstances, a disclaimer might be helpful to clarify that the
advertiser is not an official sponsor. If, however, the logo of an event is registered as
a trademark then a disclaimer will not heal any illegitimate use of such logo.
No; any sponsor is free to congratulate its team/athlete for its performance.
If the team/athlete is obliged by a contract with the sponsor to display the respective
logo/name, there is unfair competition since the team/athlete is induced to break a
contract or at least to act contrary to its duty.
No, organizers or sponsors of an event cannot ban parallel events, even in the same
town, region or country. It goes without saying, however, that logo and campaigns of
parallel events have to differ clearly from the ones of the initial event.
If available, anybody is free to purchase TV slots for advertisements around the
broadcasting of the event.
At present, this would certainly not be considered as unfair behavior.
5. Ad "Fundamental questions":
This question has been answered above, under 3. Since there are no anti-ambush
marketing provisions, this is not applicable in Switzerland.
It has been argued by certain organizations that powerful sport associations like
UEFA might use their power to enforce their exclusive rights. However, no such
cases have been decided in Switzerland.
Since there are no anti ambush-marketing provisions in Switzerland, no additional
exclusive rights are created.
In Switzerland, it is argued that economy is fostered by referring to such an event and
that the event itself may be additionally promoted by such references as well. Many
small and medium-sized businesses are not able to sponsor big events. Under such
circumstances it is neither desirable nor efficient to allow the organizer or a sponsor
to internalize all positive externalities created by the event.
In Switzerland, UEFA requested specific legislation. As an organizer, UEFA is
interested to obtain exclusivity over the event. This does not exclude, however, that it
supports its sponsors in maximising their visibility.
In Switzerland there is a "Commission pour la loyauté dans la publicité", which can
be approached by market participants who want to complain about the behavior of
other market participants.
Geneva/Zurich/Lucerne, 19. April 2007
Dr Kamen Troller Dr Lucas M David Dr Gallus Joller