With the 2024 Paris Olympics now underway, and an estimated total investment of circa €9 billion, many Australians are eager to take advantage of the global coverage and buzz surrounding the event.1 Some of us might even be tempted to have a punt.
In this article we want to point out the risks of doing two things that some businesses in Australia are likely to do during the Olympics. Firstly, some businesses are going to use Olympic designations without permission and secondly, wagering service providers are going to offer in-play betting on Olympic events. Doing either of these things could land them in serious trouble. Here's why.
Rights over Olympic Games and Olympic Properties
Protection of the Olympic Games and corresponding IP rights are dealt with under the Olympic Charter. Specifically, under Rule 7 of the Olympic Charter, the International Olympic Committee (IOC) owns all rights in and to the Olympic Games and Olympic Properties which have the potential to generate revenues for such purposes.
In Australia, the Olympic Insignia Protection Act 1987 (Cth) (OIPA), protects Olympic insignia by:
- making the Australian Olympic Committee (AOC) the owner of copyright in the Olympic symbol and the owner of certain Olympic designs;
- providing that the use of the Olympic motto, the Olympic symbol and certain other Olympic images is to be taken to be contrary to law in certain circumstances; and
- prohibiting the commercial use of certain Olympic expressions unless the user holds a licence granted by the AOC.
The AOC has numerous trade marks registered/protected in Australia, for example:
- each of the following logos:
-
and each of the following phrases:
- QUEENSLAND 2032;
- BRISBANE 2032; and
- AUSTRALIAN OLYMPIC CHANGE-MAKER.
Protecting Olympic designations and associated revenue streams is critical to the Olympic movement, with any generated revenues trickling down to International Sports Federations and National Olympic Committees.
Can you use the Olympic Properties?
The IOC has prepared some general guidance on its website in this regard.
'Commercial use' of the Olympic Properties is generally not possible for the public unless the party applying to use these is an official Olympic partner organisation. 'Commercial use' involves the use of the Olympic Properties for the manufacture and/or offer in the market of goods and services for direct or indirect financial gain. The IOC notes that this might include promoting a new clothing line, offering a trip to the Olympic Games or commercialising merchandising items such as pins, diaries or souvenirs.
There are however certain exceptions (i.e. allowed uses) for educational use, editorial use and use by non-commercial entities. The IOC informs that non-commercial entities wishing to make a formal request to use the Olympic Properties can complete this form or contact their National Olympic Committee (in Australia this would be the AOC).
The AOC has also released its own factsheet about the use of Olympic Properties. It forewarns that those seeking to advertise in connection with the Olympics must (in addition to any IP requirements) ensure they remain compliant under Australian Consumer Law (ACL). Sections 18 and 29 of the ACL prohibit a person from publishing any material that conveys the representation that they have an association with, or sponsorship-like support from, the AOC, if they do not actually have that association or support. Doing so will likely mislead or deceive consumers. In the AOC's own words:
'For example, if an organisation posts to social media, without authority, 'We're proud to be part of the journey to the Brisbane Olympic Games #Brisbane2032' with an image of the Brisbane skyline, such a post is misleading because it implies to a consumer that the organisation is officially associated with the Olympic Games, when that is not the case.'
Who will stop me?
There are plenty of examples of Olympic Committees taking action to enforce their rights against parties using Olympic Properties in advertising or on products (without obtaining prior consent), which shows the Olympic Committees are prepared to protect their IP, including:
- The AOC took action against Telstra for its 'I go to Rio' advertisements, which were aired during the 2016 Olympics held in Brazil. Optus was an official sponsor of AOC in 2016. The case ran for several years through appeals, with Telstra eventually being successful in its defence.
- The AOC took action against the brewer of Colonial IPA beer in 2020 on the basis that its use of Olympic Properties on the beer products would cause customers to believe they were acquiring goods provided by or on behalf of the AOC or the IOC – the matter was settled out of Court.
- Several news outlets (including the BBC) recently reported that the US Olympic and Paralympic Committee are suing Logan Paul and KSI's Prime energy drinks brand, accusing it of trade mark infringement.
Regulation of in-play sports betting in Australia – WSPs be aware!
Whilst all 'accredited persons' at the Olympic Games are prohibited from participating in, or supporting betting related to the Olympics, wagering services providers (WSPs) in particular are amongst those businesses likely to exploit the hype surrounding the games, through the provision of sports betting services across some 32 different sports and 329 events overall.2 This comes as no surprise, with the Australian Communications and Media Authority (ACMA) reporting that 'Gambling is a common form of entertainment in Australia, with around 73% of Australian adults gambling at least once in the 12 months from July 2021 to July 2022.3'
Importantly, WSPs need to ensure the specific licensing conditions imposed by their respective state/territory licensing authority permit them to offer wagering and betting services in respect of the upcoming 2024 Olympics. Those who want to make sure the online gambling service they are using is legal can check the official register of licensed interactive gambling providers that operate in Australia.
In Australia, the Interactive Gambling Act 2001 (Cth) (IGA):
- regulates access to gambling via numerous platforms and makes it an offence to provide 'interactive gambling services' (subject to certain exceptions, including for example 'excluded wagering services');
- confirms that online wagering by registered WSPs on sporting events is permitted under the category of 'excluded wagering services', except to the extent that the service constitutes an 'in-play betting service';
- permits in-play betting where the bet is placed on-site (in a venue) or made wholly via a voice call to a customer service centre (but not over Voice over Internet Protocol or an automated click to call service); and
- prevails over state and territory legislation to the extent there are inconsistencies.
ACMA found major wagering companies breached in-play betting rules in lead-up to Paris 2024
While the IGA permits in-play betting made wholly via a voice call to a customer service centre, WSPs need to be careful if they offer in-play betting through a system that utilises an online wagering service. In December 2023, several 'big-game' operators were reported by ACMA to have breached in-game betting rules through their use of 'Fast/Quick Codes' to facilitate in-play betting on sports matches. The ACMA notes:
'A Fast/Quick code is provided to a customer when they use the operators' website or App to build an in-play wager. The Fast/Quick code embeds the event, bet selection, and bet type of a customer's in-play wager. When the customer calls the operator to place their bet over the phone, they quote the Fast/Quick Code along with the bet amount and confirm the bet.
In-play betting services were found to individually generate Fast/Quick Codes for each particular in-play bet when that bet was built by a customer via the service's website or App–at least for the first customer.. the betting information encapsulated in the Fast/Quick Codes had been communicated to the wagering service via the website or App, rather than wholly via the phone call (as required for the phone betting exception to apply).'
Penalties for breach of IGA
The ACMA can on its own initiative, or in response to a complaint, investigate whether a person has contravened a provision of the IGA. If required, it may also pursue a variety of warning and disruption measures (e.g. website blocking of WSPs or seeking injunctions and undertakings) to enforce the IGA.
The maximum criminal penalty for offering a prohibited interactive gambling service to customers in Australia is 5,000 penalty units ($1,375,000), with a person committing a separate offence in respect of each day during which the contravention occurs. The maximum civil penalty is 7,500 penalty units ($2,062,500).
Under section 61EA of the IGA, WSPs must also not publish any advertisements for prohibited gambling services in Australia, subject to the exceptions listed under 61EB to 61EF.
Conclusion
The lure of being associated with the Olympics is tantalising. Especially when the Olympics produce some of the best sporting moments in history and significant interest from the public, which in Australia includes a large portion of people who don't mind having a punt.
Businesses should be careful about how they advertise and promote offerings during the Olympics to ensure they don't go too far and suggest an association or sponsorship they don't actually have.
Similarly, WSPs should ensure they have robust compliance and betting monitoring processes in place when promoting their waging services during the Olympics – the largest sporting event in the world.
Footnotes
1 https://www.espn.com.au/olympics/story/_/id/40143941/paris-olympics-budget-expecting-small-profit-organisers
2 See Article 9 of the International Olympic Committee
Code of Ethics accessible at: https://olympics.com/ioc/code-of-ethics
3
https://www.acma.gov.au/publications/2023-10/report/gambling-advertising-australia-placement-and-spending#:~:text=Gambling%20is%20a%20common%20form,some%20individuals%20and%20their%20families.
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.