Who: Adidas vs. Nike
Where: Hamburg (Higher Regional Court), Germany
When: January 2015
Law stated as at: August 2015
Nike had published an ad in various media containing the slogan “Improve your game with Nikefootball+ – Are you ready for the elite?” (translated from: “Verbessere Dein Spiel mit Nikefootball+ – Bist Du bereit für die Elite”?). This slogan featured on the lid of an open shoebox with a pair of Nike football shoes in it. Behind this box more than 50 professional football players from various teams. They were linked arm in arm (such as on a team photo). The players’ teams were all sponsored by Nike and wearing their (Nike-)team apparel on this photo montage. Yet, some of the players were sponsored by Adidas and actually play with Adidas shoes.
Adidas sued Nike, claiming omission and provision of information regarding the respective advertising activities as well as damages from Nike. The Higher Regional Court of Hamburg held that this advertising was misleading in the sense of Section 5 German Act Against Unfair Competition (“UWG”) and, thus, granted the raised claims (judgement as of 19 January 2015, docket no. 5 U 203/11).
The court was of the opinion, that, although the ad did not expressly refer to Nike’s football shoes, the relevant public considered the ad as such (i.e. for Nike’s football shoes). Nike stated that this was not a product related advertisement but merely a reference to the online football training programme (Nikefootball+) and the ad only intended to generally attract people’s attention. The court did not share this opinion. This was because in the Court’s view, the distinctive combination of the visual and verbal elements clearly created a link to Nike’s football shoes: famous football players wearing their team outfits, the prominent display of Nike football shoes, use of the word “Nikefootball” and, last but not least, the Swoosh.
Given this, the advertisement contained misleading information because it gave the false impression that all the displayed players wear Nike football shoes: In fact, some of the players are sponsored by Adidas and wear Adidas football shoes (inter alia: Kaká, Lúcio, Henry, Diego, Xavi, van Bommel and van Persie). Even though it might be common knowledge that professional football players may have individual sponsorship agreements (independently from the team’s outfitter) the ad gave the impression that all the displayed players wear Nikes. This was, according to the court, particularly because the shoes of the players were not displayed.
Why this matters:
Particularly, when it comes to major sporting events it is attractive to become part of this without being an official sponsor. It is also tempting to use famous people’s images for advertising campaigns without asking them for permission and, particularly, not paying them for this. This is commonly referred to as Ambush Marketing.
The court is making clear that not only the individual relationship between the advertising company and the displayed individual or the organizer of the event can become the subject of legal disputes but also the actual official sponsor can raise claims against such behaviour. This is remarkable to some extent because Nike was not infringing any individual rights in this case: There are no contractual relationships to be broken between Nike and Adidas, the football players (sponsored by Adidas or Nike) nor their teams (sponsored by Nike anyway); neither are Adidas’ name or trademarks used.
Yet, when an ad implies a factual statement (here: “all players wear Nike football-shoes.”) this statement had better be true. Otherwise such (implied) statement could be considered as misleading and the ad would be considered as unfair business behaviour. Depending on the individual case it might be possible (and recommended) to insert a suitable disclaimer in order to clear up any misunderstanding (for instance: “some of these players do not wear Nike football-shoes when they play”).
Whenever an advertiser does not have contractual agreements with the affected parties (particularly referenced individuals and event organizers) it is entering a grey area when taking advantage of these others’ investments. One should examine such intended campaigns very carefully in order to minimize legal risks.
Please note that in Germany both competitors of the advertiser as well as certain associations (e.g. for consumer rights protection or against unfair business behaviour) can raise claims against the advertiser. Furthermore, irrespective of damages, a claim for omission can be enforced very quickly (within few days) by way of an interim injunction in Germany so affected campaigns can be stopped immediately. This may not be such a big issue if the promotional activity comprises a single action or is conducted only online where respective material can be removed easily. However, when, for instance, the campaign is conducted more extensively in more traditional media (e.g. a widely spread poster campaign) the defaulting company will face high costs and efforts in order to comply with the court’s order.