As the Netherlands and Spain prepare to face off in Sunday’s World Cup Final, there’s no doubt we’ll be seeing a lot of orange– both on the field and in the stands– when Sunday rolls around.

Fans wearing official orange (or “oranje” if you prefer) Netherlands soccer jerseys won’t have anything to worry about, but they may want to think twice about wearing orange if the color happens to bear an affiliation with the Dutch brewerey Bavaria.

For the second straight World Cup, individuals wearing Bavaria logos on their clothing were ousted from World Cup venues.  In Germany in 2006, it was 1,000 fans who were denied entry because of orange lederhosen they attempted to wear into the stadium.  (Officials kindly offered them unbranded shorts they could change into if they wished to enter.)  This year, in South Africa, it was 30 or so Dutch women in orange Bavaria minidresses who raised FIFA’s ire.

The reason?  The presence of Bavaria insignia’s would violate Budweiser’s exclusive endorsement agreement with FIFA.

Both incidents were planned, “ambush marketing” efforts on the part of Bavaria.

This, of course, raises the obvious question: can FIFA do that?

Interestingly, South Africa has an anti-ambush marketing law that outlaws Bavaria’s conduct.

But what if the United States were hosting the World Cup, and it had been the Miller Lite Girls and not the Bavaria Girls entering the stadium to Budweiser’s chagrin?

The Lanham Act most likely provides a limited remedy here.  The Lanham Act would provide possible remedies for ambush marketing that result in consumer confusion/likelihood of consumer confusion.  In other words, the conduct of an ambush marketer may have to rise to the level where an ordinary consumer in the stands would have to (mistakenly) think that the ambush marketers standing next to him had some sort of sponsorship or affiliation with the event.  Thus, it seems less likely that the Miller Lite Girls would get the boot in my US World Cup scenario.  For a more thorough treatment on ambush marketing, see Jason Schmitz’s article in the Northwestern Journal of Technology and Intellectual Property here.

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