Advertising for football shoes with third-party testimonials

The conflict between team or association sponsors and individual sponsors is as old as sponsoring itself. While some rely on the power of entire teams, others attempt to put their brand in the right light by engaging individual testimonials. Collisions are thus inevitable. The Higher Regional Court (OLG) Hamburg had to decide on an interesting case of conflict between Nike and Adidas.

In football, the peculiarity exists that players at professional clubs have the possibility, independently of any existing team sponsoring arrangement, to enter into individual contracts with regard to their footwear, even if the contracting party is a competitor of the team supplier. That this harbours conflict potential is evident. The dispute now decided by the Higher Regional Court (OLG) Hamburg concerns an advertisement by the sports articles manufacturer Nike for football shoes featuring players from several teams equipped by him (with clothing or jerseys) in the leading role. What was problematic and disputed about this was that these players were partly not supplied with shoes by Nike, but by Adidas, although the respective footwear was not visible in the disputed advertisement. Adidas objects to this with its action seeking a cease and desist of what it considers to be misleading advertising.

The court's decision

The company argued that the depiction would suggest to the viewer that all of the players depicted would be playing with the advertised or another Nike footwear, although this is not the case for a total of 9 players. These are under contract with Adidas. Nike defended itself by arguing that it was not an advertisement for shoes at all, but rather for its online training programme Nike Football+. Furthermore, the company was entitled to such advertising because advertising agreements exist with the respective teams, which permit advertising with depictions of team members.

The Higher Regional Court (OLG) Hamburg sees this – as did the court of first instance – differently in its judgment of 15.01.2015 (Az. 5 U 203/11). The depiction of the oversized football shoes in combination with the image of world-renowned football professionals and corresponding terminology is capable of and intended to arouse the viewer's interest in the depicted football shoes. It is therefore advertising for these shoes. In the court's view, the advertising is also misleading because the overall circumstances of the advertising do not allow the relevant circles of commerce to reach any other conclusion than that the depicted players wear Nike footwear. Otherwise, the reference to the players would make no sense. Since this assumption is false with regard to the 9 players shod by competitors, there is misleading and therefore anti-competitive advertising.

Conclusion

The dispute is merely exemplary of the constantly smouldering conflicts between team or association sponsors on the one hand and individual sponsors on the other. The Higher Regional Court (OLG) Hamburg demonstrates sensitivity and brings about what I consider to be an appropriate balancing of interests. However, one may suspect that Nike was aware of the problem and knowingly ran the risk in favour of other objectives. If not, this demonstrates how differently the manifold factual scenarios are assessed by the lawyers concerned with them.