Advertisers will also need to understand the boundaries between clever campaigns and those that might fall foul of the law. The laws covering trademarks and copyright largely reflect the UAE’s obligations under the Trade Related Aspects of Intellectual Property Rights Agreement. Article 37 of the Trade Mark Law (Law No 8 of 2002 amending No 37 of 1992) and Article 37 of the Copyright Law (Law No 7 of 2002) provide the usual prohibitions on infringement and counterfeiting. Any unauthorised direct use of registered rights or copying of logos or images in material produced around an event will fall foul of these provisions.

The Copyright Law provides for a system of voluntary registration of copyright, broadly similar to the US. While registration is not necessary to bring an infringement claim, it does provide an opportunity for rights’ holders to take further steps to add an extra layer of protection to try and cover broader elements not protectable as a trademark, such as the layout and general look of promotional material.

Unchartered territory
For anything beyond direct infringement of a registered (or unregistered in the case of some copyright) right, the laws dealing with unfair competition will be the most relevant. The primary law, the Commercial Transactions Law (Law No 18 of 1993) specifically addresses unfair competition in Section 3. Article 65 prohibits, among other things, a trader from falsely declaring that it holds a status, or resorting to other misleading means to usurp the customers of a competitor. Article 66 goes on to prohibit fraud and cheating in marketing goods.

The Law on Prevention of Fraud and Deception in Commercial Dealings (Law No 4 of 1979) and its supporting Executive Regulations also provide that a commercial statement must comply with all the facts, regardless of where it is placed or the particular method used to sell goods to the public (Article 2 of the Executive Regulations). The regulations go on to prohibit false statements in relation to origin or the significance of goods (Article 4) as well as prohibiting the conscious use of a forged or imitated trademark (Article 5). In this case, trademark is defined broadly to include any visible means used to distinguish the products of one enterprise from another and is not limited to a registered trademark.

Article 423 of the Penal Code (Law No 3 of 1987) deals with cheating in commercial transactions. It provides for detention and a fine in the case of cheating another party in relation to the genuineness of goods. These penalties are extended to all knowingly involved in the circulation of such non-genuine goods.

Misleading or outright fraudulent conduct that confuses consumers into believing a trader is an official sponsor of an event or has some connection or authorisation is likely to be in breach of these prohibitions. The success of any action (or defence) will depend on the degree to which a court will be prepared to fit these provisions to the ambushing conduct. Unfortunately, there are no real precedents from the UAE courts on this activity so a willing litigant is likely to need to be prepared to navigate unchartered territory.

Action stations
On a practical level, enforcement through one of the local authorities, such as the various Departments of Economic Development and Ministries of Economy in the emirates, or the police, is likely to be the most cost effective way for an organiser or sponsor to take action. By spending time with the relevant authorities in advance of an event, an event organiser will be well placed to take immediate action against any ambushing activities that may happen around the physical location of an event. There will be a greater challenge in preventing advertising campaigns and other promotions proximate in time, but not place, and it is likely that court action will still need to be considered.

Article 19 of the Publications Law presents a further prospect for rights’ holders to spend time with the relevant authorities to try and enlist their support in preventing the publication of ambushing material. It provides that publications must be submitted to the Ministry of Information and Culture prior to circulation giving an opportunity for heading off an ambush.

It is possible to file for “precautionary measures” in the UAE. The equivalent of an injunction, such applications can be made to the Court of Urgent Matters on an ex parte basis, but must be followed up with a full civil claim within eight days. There are no specialist courts dealing with intellectual property issues, so before bringing action, a potential litigant should carefully consider the complexities of their argument.

With so many impending and high-profile sporting events in the UAE, it is highly likely that some, if not all, will be a target for ambush marketing campaigns. With the legitimate rights’ holders, official sponsors and authorities working together, it should be possible to manage the threat. However the UAE would benefit further from looking at specific laws and mechanisms to tackle this global sporting phenomenon.

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