Three years (rather than the usual four) having elapsed since the COVID-deferred 2021 Olympic Games in Tokyo, Olympic fever has again struck in Australia as our talented athletes compete in the 2024 Paris Games.
A major public marketing campaign is out in force on Australian streets and screens. Run by the Australian Olympic Committee (AOC), the #AllezAus campaign encourages Aussies to tune in and cheer on their compatriots despite the distance (and painful time zone) between our continent and the events in France.
With the interest of regular Australians in the Olympic Games dialled up to 11 for the next three weeks, there is a major temptation for businesses to piggyback on the Olympic spirit by incorporating phrases relating to the Olympics, or the famed Olympic Rings, into products and product marketing.
However, the temptation to do so is fraught with danger. The major problem with tapping into Olympic hype is that the AOC has a monopoly on the use of Olympic devices in Australia - including various graphics, words and phrases - and only the AOC can grant licences to third parties to make use of Olympic branding.
Where organisations cannot obtain (or don't want to obtain) appropriate licences or approvals, some organisations may deploy a tactic of implying an association with protected branding, like that of the Olympic Games, which is called ambush marketing. Generally, ambush marketers seek to benefit from the goodwill associated with a well-known event without having to pay to use those rights.
This article considers the legal framework surrounding protection of the Olympic insignia and ambush marketing in relation to the Olympics, highlighting key authorities for the protection of Olympic symbols and phrases nationally.
The law protecting Olympic insignia
Protection of Olympic symbols and phrases in Australia is governed by the Olympic Insignia Protection Act 1987 (OIP Act) and the associated Olympic Insignia Regulations 1993. The OIP Act provides protection for the Olympic rings, motto, and related Olympic insignia, ensuring that only authorised entities (being the AOC and its licensed users) can use these symbols in a commercial context.
The purpose of the OIP Act is to preserve the integrity of the Olympic symbols, and to support the commercial value of licensing and sponsorship deals made by the AOC with companies who invest significantly in officially supporting Australia's efforts at the Olympic Games.
The OIP Act primarily gives the AOC ownership in Australia of the copyright in the Olympic Symbol (known as the Olympic rings). It gives the AOC rights over the Olympic Symbol, as well as rights over the use or "protected Olympic expressions" for commercial purposes. The protected Olympic expressions are:
- Olympic
- Olympics
- Olympic Games
- Olympiad
- Olympiads
Further, the AOC currently owns 52 registered trade marks in various classes that extend its exclusive rights over the use of graphics and phrases that are adjacent to the Olympic Games, such as:
- AllezAus
- AUSOLYMPICTEAM
- Have a Go
- the Boxing Kangaroo
- Team Australia
In effect, organisations that do not have a current sponsorship deal with the AOC run the risk of legal action if they utilise the Olympic Rings, protected Olympic expressions or the AOC's trade marks for commercial purposes, such as in marketing for products designed to capture Olympic hype.
What references to the Olympics are allowed for non-sponsors?
Very few. The OIP Act does carve out a limited number of exceptions, but these mainly apply to organisations referring to the Olympics for the purposes of, or in connection to, criticism or review. This exception allows media organisations, journalists, broadcasters, YouTubers and the like to make reference to protected Olympic expressions in the course of reporting on the Olympic Games, or issues surrounding the Olympics.
There are also exceptions for references to the Olympics made by former Olympians, or former support staff to Olympians (such as physiotherapists) - but only once the Games are over, and not in a way that implies a sponsorship arrangement with the AOC.
What penalties can be faced for breach of the rules?
The Federal Court of Australia can grant a wide range of remedies for breach of the OIP Act. These include injunctions, corrective advertisements, monetary damages (to varying degrees), or account of profits, wherein the organisation that breached the rules and made a profit has to surrender that profit to the AOC.
There are also further penalties that may be applicable for trade mark infringement under the Trade Marks Act 1995 or under the Australian Consumer Law (ACL) including for misleading and deceptive conduct.
The Courts have cast doubt on the watertight nature of Olympic marketing prohibitions
The decision in Australian Olympic Committee Inc v Telstra Corporation Limited [2016] FCA 857 considered a number of issues around use of the Olympic expression and the concept of ambush marketing in relation to the Olympic Games.
In 2016, Telstra ran an advertising campaign ahead of the Rio de Janeiro Olympic Games that included phrases such as "The Olympics on [Channel] 7" and various other uses of "Olympics". The AOC perceived this to be ambush marketing prohibited by the OIP Act. Channel 7 had secured the rights to broadcast the 2016 Olympic Games, and had licenced the broadcast advertising rights to Telstra.
The AOC primarily argued that Telstra had breached the ACL's provisions relating to misleading and deceptive conduct in that an Australian consumer would believe Telstra was the official telecommunications partner for the Olympics (which was a licence owned by Telstra's rival, Optus, in 2016, although Telstra had held the licence for previous Olympic Games).
The Federal Court of Australia, affirmed on appeal by the Full Court of the Federal Court, disagreed. The Full Court upheld the Federal Court's judgment that Telstra's advertising campaign was not misleading or deceptive as the reasonable person would not recall Telstra's former sponsorship of the AOC.
While Telstra had used protected Olympic expressions in its advertising - which stated that the 7 Network's licenced Olympic Games broadcasts could be watched on the Telstra mobile phone data network - it was held that it was not straightforward to show that this use was of a kind that contravened the OIP Act or the ACL. Instead, the use of the Olympic expressions was directed at informing customers of Telstra's licence to broadcast Channel 7's coverage via its mobile phone application.
Need advice about intellectual property risks of products and product marketing?
The effect of the Telstra case is that the boundaries of what does or does not constitute a breach of the protections around commercial use of Olympic expressions has been blurred. However, it also shows that the AOC takes breaches seriously so we would not recommend that you proceed heedlessly. Instead, by respecting the protections associated with the Olympic insignia, phrases and expressions, you will ensure that their value for AOC's licensing remains high - something that benefits our talented athletes and hopefully our position in the medal tally!
Australian intellectual property law is complex, and infringing the IP rights of other businesses (even inadvertently) can pose risks to your organisation. We can help by considering your planned product and marketing concepts, and advising you of the degree of risk associated with these plans. Get in touch with Swaab's experienced intellectual property team at jas@swaab.com.au
For further information please contact:
James Skelton, Partner
Phone:+61 2 9233 5544
Email: jas@swaab.com.au
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.