Sydney-based consultant, working in data analytics. Formerly Data Analyst at Lawpath.
“Aussie Aussie Aussie! Oi oi oi!” In a battle for supreme dominance over many sporting events, this is the warcry of a nation. This is the Olympics Games – with so many nations fighting against each other to prove sporting excellence, Rio 2016 has proved to be a battleground for the many thousands of athletes competing on behalf of their nation. Australia just concluded their battle, finishing in a solid 10th place on the total medal tally.
However, this isn’t the only battle happening during the Olympics – there are also the legal battles that arise from the use of the intellectual property of the Olympics. The case of Australian Olympic Committee Inc v Telstra Corporation Limited [2016] is one of such battles, and it addresses the issue of “ambush marketing” and its legality in Australia.
What is “ambush marketing”?
For the Rio 2016 Olympics, Telstra constructed a “Go to Rio” Olympic-themed advertising campaign that linked them to the Games as the “official technology partner of Seven’s Olympic Games coverage”. The problem? Telstra was not an official sponsor of the Olympics, and the Australian Olympic Committee was not pleased at Telstra’s attempts to benefit from Olympics Games-related promotions, and challenged Telstra’s behaviour in court. Telstra had engaged in ambush marketing.
Ambush marketing is the practice where one company attempts to associate their products with an event or brand that already has official sponsors. The big question – is this legal in Australia? There are many protections in Australian legislation that can prevent it, so we’ll have a look at the decision in the Telstra case to see the verdict.
What are the protections?
1) The Olympic Insignia Protection Act (OIP)
The Olympic Insignia Protection Act defines what a protected olympic expression is, with phrases such as “Olympics” and “Olympiad” protected, and provides the guidelines of these expressions for commercial purposes. If a business uses a protected olympic expression in their advertising material without a valid licence, they can be subject to a large penalty under this act.
2) Australian Consumer Law
The legislation states that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive. An example of misleading or deceptive conduct would be false advertising about the performance of an item on sale.
3) Tort of Passing Off
Passing off is where there is a representation that someone’s goods or services are that of someone else. The common law tort of passing off can be used to enforce unregistered trademarks, and seek compensation where someone has tried to pass off their goods as services as yours. An example would be if you were to hold a “Lord of the Rings” party, and try to pass off your event as an officially endorsed party.
What happened?
In this situation, although the behaviour by Telstra was definitely controversial, the court found that Telstra was not in breach of any of the above protections, despite the AOC’s submission that it was a “clear attempt to deceive Australians”. The advertisements had made it sufficiently clear that there was no sponsorship between Telstra and the AOC.
One thing to learn from this case is that, although the law does provide considerable intellectual property protections, ambush marketing sits on a dangerous fence, and that the conduct of many businesses in attempting to benefit by association can be borderline illegal, as is the case here. A very interesting takeaway on the legality of ambush marketing!
How did you enjoy this year’s Rio Olympics? Noticed anything interesting about the hundreds out marketing campaigns out there? Let us know by tagging us @Lawpath.
