Australia: A Guide To New National Ambush Marketing Legislation In Australia - Major Sporting Events (Indicia And Images) Protection Act 2014

Event owners typically rely on sponsorship deals with various businesses as a revenue stream to offset the significant costs of conducting the event. In exchange for a payment or other arrangement, sponsors benefit from displaying their indicia and/or images in connection with the publicised event (usually on an exclusive basis). Often competing businesses test the exclusivity of these arrangements by associating their name, brand, products or services with the event in an unauthorised (but not necessarily illegal) manner. This is known as ambush marketing.

Australia has developed protection against ambush marketing through various legislative and common law causes of action, including the common law tort of passing off and the Australian Consumer Law (which prohibits misleading or deceptive conduct and false and misleading representations). Whilst there are some limited piecemeal state-based laws which address specific types of advertising in and around major events, Australia's national framework of protection relies heavily on event-specific legislation (such as those enacted in relation to the Sydney Olympics and Melbourne Commonwealth Games).

With the upcoming Asian Football Confederation (AFC) Asian Cup 2015, the International Cricket Council (ICC) Cricket World Cup 2015 and the Gold Coast 2018 Commonwealth Games, parliament has recently passed another piece of legislation, being the Major Sporting Events (Indicia and Images) Protection Act 2014 ("Act") to cover ambush marketing in respect of these events and potentially others.

Overview of the Act

The significance of the Act, as distinct from earlier event-specific legislation, derives from the generic way it has been drafted. The Act can be readily amended to apply to other events by substituting different event-specific schedules as and when required.

The Act follows a similar structure to previous legislation enacted for the Sydney Olympics and Melbourne Commonwealth Games. It prohibits a person from using protected indicia and images for commercial purposes during the event's protection period unless the person is the event body for the major sporting event, is authorised to use it through registration with the authorised body, or is not prevented from using it by law. Authorised users are included on a publicly available register in relation to the respective event.

Protected indicia include words prescribed in schedules to the Act, which relate to the event name and known abbreviations including for example the phrases "AFC Asian Cup," "AC2015," "Cricket World Cup" and "Commonwealth Games" and "GC18." It also protects images which would, to a reasonable person, suggest a connection with the event.

Protected indicia and images are protected against unauthorised use for commercial purposes. This includes the application of the protected indicia/images to goods or services for the primary purpose of advertising, promoting or enhancing demand of the goods or services (and the supply of those goods and services), where the application would suggest to a reasonable person that the user is a sponsor or other supporter of the event. The provisions cover both unauthorised users and other parties who aid and abet others to contravene the provisions.

Advertisers should also be aware that the importation of such goods by parties other than authorised users may also be seized by Australian Customs. Authorised users can lodge a notice of objection with Australian Customs which requires Australian Customs to seize any infringing goods imported after the objection notice is given. Australian Customs gives the authorised user an opportunity to apply for an injunction within a 20 day period before the goods are released to the importer.

Contravention of the Act may entitle authorised persons to seek an injunction, damages or an account of profits.

Practical Considerations

Advertisers seeking to advertise their goods and services in connection to Asian Football Confederation (AFC) Asian Cup 2015, the International Cricket Council (ICC) Cricket World Cup 2015 and the Gold Coast 2018 Commonwealth Games (whether official sponsors or not) need to consider whether the Act applies to them.

Advertisers who are not official partners of these events, but are looking to advertise in connection with these events, need to consider the scope of the Act to ensure that their advertisements and promotions are not prohibited. Conversely, advertisers who are official partners should be aware of the available protections and remedies under the Act in respect of ambush marketers, and also consider making use of the customs seizure provisions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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