As Ann reports below, Mark Lemley and Mark McKenna are sharing a new paper on the overbreadth of “likelihood of confusion” analysis in contemporary trademark law. These thesis of the paper seems incontrovertible to me, but the paper frames its argument with an initial anecdote that bears a little exploration. They write:
In 2006, thousands of soccer fans showed up to the World Cup game between the Netherlands and the Ivory Coast wearing pants in the colors of the Dutch national team. The pants had been given out as promotional gifts by a beer company. FIFA, the governing body of international soccer, objected. It owned the trademarks for the team colors, and giving out pants in those colors was in FIFAâ€™s view â€œambush marketingâ€ that was likely to confuse those who saw (or even those who wore) the pants into thinking that the soccer team had sponsored the pants. And in FIFAâ€™s view, not only was giving out the pants illegal, but individuals wearing them were falsely suggesting some affiliation with the Dutch national team. Prohibited from wearing the pants into the stadium, more than one thousand fans dutifully took their pants off and cheered the Dutch team to victory in their underwear.
This is all correct, but there is both more (and perhaps less) to the story than meets the eye. Here is an image of the ad campaign developed by Bavaria, the Dutch brewer that supplied the pants:
What’s missing from the paper’s initial account is the fact that the beer company’s name appeared prominently on the pants (lederhosen, in fact, or what Bavaria called “leeuwenhose,” playing on the fact that the leeuwen, or lion, is a national symbol of the Netherlands. Note the “tail” at the back of each pair. Also missing is the fact that the distribution of the outfits was part of an advertising campaign orchestrated by Bavaria to take advantage of the exposure that the Dutch team earned during the World Cup finals, and that FIFA, sponsor of the finals, had an exclusive sponsorship deal in place with Anheuser Busch. Bud was the suds of the Cup (which is ironic, of course, since at the time Bud was an American company sponsoring a tournament being played in Germany); Bavaria was not so subtly horning in on the action.
In fact, FIFA has an active campaign to guard against what’s called “ambush marketing”; in anticipation of next year’s finals in South Africa, FIFA has already begun to clamp down on unauthorized commercial use of the phrase “World Cup 2010” and equivalents.
Should any of this matter?Â In standard trademark terms, perhaps not; that’s a main point of the paper.Â FIFA has no business “protecting” consumers from arguable confusion about whether or not Bavaria was an official sponsor of the Dutch side.Â It strikes me as likely that people bought the pants because wearing orange to games featuring the national team is what the Dutch do.Â Hup, Holland, Hup, as they say!Â (In fact, apparently the Dutch fans who were forced to strip down revealed that they were, on the whole, wearing orange underwear.)Â
But it’s more than plausible that FIFA has a legitimate interest in protecting the exclusivity of the tournament sponsorship purchased by Anheuser Busch.Â The “pantsing” of the Dutch had little or nothing to do with consumer protection or likelihood of confusion, as such; this was a question of unfair competition.Â The problem here may be not that FIFA doesn’t have a claim, but that trademark law is a poor fit for the alleged harm.
And the remedy, of course, is something else entirely.Â The Dutch seemed to take the pantsing in stride.Â Perhaps, instead, the managers of Bavaria beer should have been forced to drink Budweiser.