Australia: ‘The Ring Games': How ambush marketing can see brands benefit from multi-million dollar events for free

Last Updated: 14 August 2016
Article by Richard Leder, Sanjay Schrapel and Rebecca Burns

Sponsorship agreements between brands and significant national and global sporting and cultural events provide valuable platforms from which those brands can market to a wide and attentive audience. But they come at a cost. 'Ambush marketing', put simply, is a term used to describe attempts made by brands to ride the train of hype and excitement surrounding such events without paying for official sponsorship.

Between Nike and Adidas, Qantas and Ansett, and, more recently, Telstra and Optus, ambush marketing is clearly big business in and of itself. Ambush marketers do, however, run the risk of infringing the Australian Consumer Law (ACL) and, especially in the case of the Olympics, other specific anti-ambush marketing legislation. In this article, we take a closer look at some of these risks, with a special focus on the recently-commenced 2016 Rio Olympic Games.

In a recent interview between Michael Rowland and Wil Anderson on ABC News Breakfast to promote the new season of Gruen, Wil admonished Michael for referring to the upcoming Rio 2016 Olympic Games as 'the Olympics'.

"Are we allowed to say that? Shouldn't we be calling them 'The Ring Games'?"

It's no secret that the Olympics, and more particularly the sponsorship agreements surrounding them, carry significant value.

It therefore follows that the Australian Olympic Committee (AOC) has a strong and consistent history of jealously protecting its intellectual property rights over the Olympics, and the instantly-recognisable (or perhaps not so recognisable)1 insignia that goes with it. So much so, that in 1987, the Commonwealth Parliament legislated to provide explicit protections over particular 'Olympic expressions', with the passing of the Olympic Insignia Protection Act (OIP Act). 'Olympic expressions' are given a surprisingly broad definition: they include the words 'Olympic', 'Olympics', 'Olympic Games', 'Olympiad' and 'Olympiads'.

Under s 36 of the OIP Act, no person (other than the AOC) is permitted to use an Olympic expression for 'commercial purposes', unless they have a licence from the AOC to do so. Under the OIP Act, an Olympic expression will be have been used for 'commercial purposes' if the expression is:

  • used in a marketing campaign; and
  • a 'reasonable person' would consider that the entity using the expression was 'a sponsor...or the provider of sponsorship-like support' to the AOC, the IOC, any of the Olympic Games themselves, or any of the Olympic teams or competitors.

Perhaps unsurprisingly, the scope for a breach of the OIP Act is therefore quite broad. It is no coincidence that businesses across Australia - in trying to hitch their marketing campaigns to the Olympic bandwagon in order to sell anything from beverages to televisions and travel packages - use an abundance of green and gold, and imagery of ordinary people (non-Olympians) engaging in sporting activities, while simultaneously avoiding any utterance of the 'O' word.

The Australian Parliament also deemed the Sydney Olympics so sacred that in 1996 it passed the Sydney 2000 Games (Indicia and Images) Protection Act (Sydney Act). This Act extended the protections from brand hijacking already provided in the OIP Act to the phrases 'Games City', 'Millennium Games', 'Sydney Games', 'Sydney 2000', and any combination of the word Games and the number 2000.

Such strict laws have not, however, stopped companies from devising creative ways around them.

Qantas famously released and aired an especially patriotic variant of their 'I still call Australia home' commercials throughout the broadcast coverage of the Sydney Games. It did so in an environment where Ansett was actually the official sponsor, having paid between $40 and $50 million for the privilege.2 Ansett sued Qantas under the OIP and Sydney Acts, but ultimately settled. It may be fair to say that, even today, the Qantas commercial evokes a stronger recollection of the Sydney Olympics for Australians than anything Ansett did with their official sponsorship rights.

Tensions similar to those tested between Ansett and Qantas in 2000 have very recently been brought to a head again in Australian Olympic Committee Inc v Telstra Corporation Limited [2016] FCA 857. (We have prepared an article on this case covering the essential matters in dispute and subsequent outcomes of the decision, which can be accessed here).

Beyond the Olympics, ambush marketing campaigns have long been used as strategy by advertisers to link businesses with high profile sporting events without having to bear the costs of official sponsorship. For example, successful ambush marketing campaigns have recently been executed in the European Championship3 and the FIFA World Cup.4

If a brand draws on themes and styles generated by a significant event to advertise its products and services around them, it can benefit from the value of an official sponsorship without having to pay the price for one. However, brands tread this fine line at their own peril.

Even beyond the OIP and Sydney Acts, legal consequences apply to brands that engage in 'passing off' (at common law) or misleading or deceptive conduct (under s 18 of the ACL 2010) by convincing 'reasonable' viewers of their advertisements that there is an official commercial connection between the brand and the sporting event.

Outside of specific legislation (like the OIP and Sydney Acts), the ACL and the tort of 'passing off' provide the only way for event organisers and official sponsors of those events to protect their expensive and exclusive sponsorship arrangements. While history dictates that ambush marketing strategies have been predominantly successful, they can land brands in hot water, and campaigns may benefit from legal clearance before going live.

Play carefully.

Footnotes

1 https://www.theguardian.com/sport/london-2012-olympics-blog/2012/aug/03/london-2012-worst-olympics-ever

2 http://www.abc.net.au/worldtoday/stories/s171461.htm

3 http://theconversation.com/euro-2016-sponsors-being-ambushed-on-social-media-by-unofficial-brands-61880

4 http://www.lexology.com/library/detail.aspx?g=bb55e87c-0e2e-4bb0-be29-3b94a69b3ef1

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.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions