Key Points
- Companies can take practical steps to ensure sponsorship deals are not compromised by ambush marketing practices.
- And they should be careful not to use Olympic symbols or claim an association with the Games if they aren't sponsors.
The Olympic brand is instantly recognisable. As the Beijing 2008 Olympic Games approach, the corporate world is clambering to obtain the benefit of an association with that brand. Having made investments in obtaining exclusive sponsorship or other promotional rights, companies who have paid for sponsorship want to protect their multi-million dollar investments. The greatest threat to these rights comes in the form of "ambush marketing".
What is "ambush marketing"? And what are the Australian laws protecting these rights and are they strong enough to protect sponsors of the upcoming Games?
Ambush marketing
"Ambush marketing" - or less kindly "parasitic" advertising - is promotional activities where an organisation represents it has an association with an event which is misleading. Generally, it involves the unauthorised use of an event logo or, more often, other claims that mislead consumers into believing that the company or product is a sponsor or promoter of the event.
Notable examples of Olympic ambush marketing have included:
- the establishment of a "Nike Village" in Atlanta even though Nike was not an official sponsor;
- Linford Christie in the 1996 Atlanta games wearing Puma contact lenses although Reebok was the official games sponsor; and
- the widespread advertising by Qantas before the Sydney Games which had the result of most Australians believing that Qantas was the official airline for the Sydney Games rather than Ansett who had paid millions of dollars for the privilege.
Another obvious way to represent an association with the Olympic Games is through the use of recognised Olympic symbols such as the Olympic Rings and various Olympic expressions.
Generally, while the Trade Practices Act 1974 (Cth) (TPA) and other intellectual property legislation is available to protect against ambush marketing, these Acts have been supplemented by specific legislation to restrict the use of certain Olympic symbols and expressions to inhibit activities which could undermine the value of sponsorship investments.
Olympic Insignia Protection Act 1987 (Cth)
The most specific and significant piece of legislation with respect to the Olympics is the Olympic Insignia Protection Act 1987 (Cth), which was passed to prevent the unauthorised/deceptive use of Olympic Insignia or advertising which suggested an association with an Olympic body.
The Act addresses the limitations in copyright, design and trade mark law surrounding the protection of Olympic symbols by giving the exclusive copyright and design rights in symbols, such as the Olympic rings, to the Australian Olympic Committee. Specific words are also protected, such as Olympic, Olympic Games, and Olympiad.
Under the Act, the AOC has a wide range of remedies such as injunctions, damages, destruction and/or seizure of infringing goods.
There are exceptions such as past participation of Olympians, statements for the purposes of criticism or review, or uses which do not suggest a commercial association with the Games.
Chinese restrictions
With the approaching Beijing Olympics, the Chinese government has enacted Regulations on the Protection of Olympic Symbols 2002 which is similar to the Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Cth) and controls the use of certain symbols and names during the Beijing Olympics (ie. Olympic emblems, expressions and Beijing related symbols).
With the regulations covering a broad field of activities and having somewhat vague language, it has been argued there is "significant discretion in the enforcement of the regulations" leading to fines up to five times the illegal income of the breach (E. Vassallo, K. Blemaster and P. Wener, 'An International Look at Ambush Marketing' (2005) 95 TMR 1338).
The effectiveness of such measures as a deterrent remains to be seen. At the very least, the Chinese regulations aim to provide substantive rights to sponsors whose rights have been infringed and a mechanism for enforcement where infringing conduct has taken place.
Trade Practices Act
These forms of legislation discussed above are fairly specific in their application and the TPA still has an important role to play in protecting against more creative forms of ambush marketing.
The prohibition against misleading and deceptive conduct under sections 52 and 53 of the TPA provides strong remedies for sponsors against ambush marketing, including the provision for injunctions and damages.
However, while the TPA has proved useful in preventing blatant abuses of ambush marketing (eg. the misuse of trade marks and logos), results with respect to more subtle forms of advertising and ambush marketing have been mixed.
The courts have set the bar high in such cases. For example, in 2004 the Seven Network sought to protect its exclusive Olympic broadcast rights by taking action against News Interactive which used the expression "Athens Olympics" on its website along with representations of the Olympic torch. The Federal Court found that misleading and deceptive conduct in that specific instance had not been established, because the cumulative effect of the use of such expressions and Olympic symbols did not suggest or convey an association with or sponsorship by the IOC or the Olympic movement, and thus did not contravene the TPA.
By way of contrast, in a non-Olympic example, Talmax Pty Ltd v Telstra Corp Ltd, the court concluded that the use of a photograph of Kieran Perkins, in which he was wearing a Telstra logo in an advertisement, without his approval misrepresented that Perkins was a sponsor of Telstra and breached section 52 of the TPA.
Other events
With large amounts of investment by government in large events, and with sponsorship deals underpinning the success of many of these events, Australian State and Federal governments have, in recent years, enacted event specific legislation for a range of event types. Recent examples have been:
- the Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2005 (Cth), which gave protection against the use of fraudulent or obvious imitations of symbols or designs associated with the Commonwealth Games; and
- the World Youth Day Act 2006 (NSW), which controls the airspace around the event and prohibits advertising within zones designated by the Minister.
Expanding this trend further, general prohibitions have been introduced in Victoria and Queensland where the governments of both states have introduced legislation (Major Events (Aerial Advertising) Act 2007 (Vic) and Queensland Major Sports Facilities Act 2001 (Qld) respectively) which has made it an offence to display unauthorised commercial advertising and restrict aerial advertising at major sporting events.
Summary
Companies who want to claim an association with the Olympic Games when they are not a sponsor need to be very careful. Event organisers, committees and sponsors have legal remedies both in the Olympic Insignia Protection Act and the TPA.
For sponsors, history has shown that large events can be subject to multiple forms of ambush marketing. A number of practical steps can be taken to protect rights. These include:
- ensuring that the organisers have sufficient resources at the event to control ambush marketing;
- if possible negotiate the right to exercise some control at the event to ensure that ambush marketing does not occur or to take action when it does; and
- publicly denounce ambush marketing.
Companies with long-term plans in place may also wish to lobby for specific ambush marketing legislation for a specific event, or general legislation similar to that enacted in Queensland and Victoria.
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.