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
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
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.
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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