Bills Digest 89 1995-96
Sydney 2000 Games (Indicia and Images) Protection Bill 1996
WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments.
This Digest was available from 28 May 1996
CONTENTS
Date introduced: 8 May 1996
House: Senate
Portfolio: Industry, Science and Tourism
Commencement: Royal Assent
To protect official sponsors of the Sydney Olympic and Paralympic Games
from 'ambush' or 'parasitic' marketing practices by commercial rivals.
The Bill is almost identical to one introduced into the Senate last November
by the previous government.
Key provisions include:
- a licensing regime restricting the use of key words, phrases, images
and indicia, associated with the Sydney Olympics, not already covered
by the Olympic Insignia Protection Act 1987;
- injunctions to prevent breaches of the licensing regime,
- compensation for sponsors damaged by a rivals conduct;.
- empowering the Australian Customs service to seize goods suspected
of contravening the legislation.
The Olympic Games aren't just about gold medals for athletes ... they're
also big business, with large commercial interests at stake.
The Sydney Olympic Games will cost more than $3 billion dollars to stage.(1)
Commercial sponsorship is expected to provide a large slice of that
- $700 million, according to the second reading speech tabled in the Senate.
That makes sponsorship the second largest revenue stream, behind only
television rights. (SOCOG will get $600 million from the record $1 billion
paid for US television rights, a further $60 million from Australian television
rights, with other rights still to be sold..)(2).
Principle international Olympic sponsors pay about $40 million per category
for exclusive rights(3). All sponsors will want to be sure of getting
their money's worth before they sign up. This Bill is about guaranteeing
that.
And there's an added incentive. NSW has agreed to pick up the tab for
any shortfall in SOCOG's funding. So if sponsorships targets are not met,
its likely to be the citizens of NSW who pay. (This State guarantee is
in addition to hundreds of millions of dollars in direct funding from
both the State and the Commonwealth.)
Furthermore, the Host County is obliged to provide adequate protection
for sponsors, under the terms of the contract between the Host City Sydney,
the Australian Olympic Committee and SOCOG.
The Olympic Insignia Protection Act 1987 (as amended on March
15, 1994 ) already restricts the use of the Olympic symbol (the five rings),
the motto, and two torch-and-flame designs.
But this still leaves sponsors vulnerable to advertising campaigns using
'ambush' or 'parasitic' marketing practices. These campaigns are very
difficult to legislate against - but this Bill tries to limit them (or
at least stretch the ingenuity of rival legal and marketing teams and
the intestinal fortitude of management), by providing a licensing regime
for key words, symbols and images.
Ambush Marketing
Ambush marketing has been defined as:
the unauthorised association by businesses of their names, brands, products
or services with a sports event or competition through any one or more
or a wide range of marketing activities; 'unauthorised' in the sense that
the controller of the commercial rights in such events, usually the relevant
governing body, has neither sanctioned nor licensed the association itself
or through its commercial agents.(4)
Essentially, corporations using ambush marketing are freeloading ...
they're trying to reap a commercial benefit by associating themselves
with a particular event, without paying the price.
The Joint Submission by NSW and SOCOG to the Senate Legal and Constitutional
References Committee on Ambush Marketing gave examples of how they believed
these campaigns had been run in the past (although its important to note
that some of those companies accused, including GMH, denied the allegation
).
- The Nike/Reebok 'Sneakers War'. During the 1992 Barcelona Summer Olympics,
members of the gold-medal winning USA basketball 'Dream Team' with personal
sponsorship from Nike threatened to boycott the medal presentation rather
than wear the official team uniform featuring Nike's rival, Reebok.
- Also during the Barcelona Olympics, GMH advertised it would give a
Golden Holden to any gold medal winner, despite Toyota's exclusive deal.
- During the Seoul Summer Games in 1988, a T-shirt manufacturer designed
a logo 'Body and Seoul' in honour of 'the Summer Games'.
- During the 1994 Lillehammer Winter Games,Wendy's hamburger chain,
a rival of sponsor McDonald's, paid for air time during the telecast
to promote itself by using spoofs of winter sports, while carefully
avoiding mention of the Olympics.(5)
To protect official sponsors from these sorts of attacks, the Bill sets
up a licensing scheme limiting the use, for commercial purposes, of a
range of words, phrases and images.
The scheme prohibits an unlicensed company from using them to suggest
a sponsorship arrangement with the games or other support for them.
The list includes: 'games city', 'millennium games', 'Sydney games',
'Sydney 2000', any combination of the words 'games' and '2000' (or 'two
thousand'), 'Olympiad', 'Olympic', 'share the spirit', 'summer games',
'team millennium'; any combination of the words '24th' (whoever spelt
or represented) and 'Olympic' or 'games'; the use of the word 'Olympian'
or 'Olympic', with 'gold', 'silver' or 'bronze'; the use of any visual
or aural representation representing a connection with the Olympic or
Paralympic Games.
Exemptions
The Bill contains a number of exceptions allowing:
- businesses already using proscribed words or symbols ie Olympic Airways,
to continue to do so, providing they don't attempt to link themselves
to the Games;
- and permitting the use of proscribed words etc in news and current
affairs reporting, review, criticism and the provision of factual information
(ie. tour operators).
The exemption for factual information is an important difference between
this Bill and an earlier Act, the Australian Bicentennial Authority
Act 1980 (Cth). It tried to limit the use of a wide range of words
in the run up to the 1988 Bicentennial year, including '1788', '1988'
or '88' in conjunction with 'Sydney' or 'Melbourne'. In Davis v Bicentennial
Authority (6)the High Court ruled the net had been cast too wide,
pointing out that the use of 'Family Law Conference Melbourne 1988' would
have infringed the legislative scheme.
The court said the legislation allowed the Authority to regulate the
use of common expressions, with unauthorised use a criminal offence.
This extraordinary intrusion into freedom of expression is not reasonably
and appropriately adapted to achieve the ends that lie within the limits
of constitutional power,' according to the then Chief Justice, Sir Anthony
Mason, and Justices Deane and Gaudron.(7)
This Bill has other checks and balances not conainted in the 1980 Act.
However, the High Court decision should be a warning to authorities against
an over-enthusiastic interpretation.
Exemption for Sporting Bodies
The Second Reading speech also makes it clear that the Bill is not intended
to limit the 'reasonable needs' of sporting bodies to raise money and
promote their athletes in the lead-up to the Olympics and Paralympics.
But the Government still recommends these bodies negotiate Memoranda of
Understanding with the games organisers' as a safeguard if they intend
to use protected words, symbols or images.
That's prudent advice given the very wide scope of the obligation imposed
by the Host City Contract, and the lack of a specific exemption in the
Bill for sporting bodies. The contract requires that Sydney, The Australian
Olympic Committee and SOCOG ensure there are no other marketing programs
in the country relating to the Games. In particular,
they shall ensure that no marketing programs organised by one or more
national federations, sports organisations or any other public or private
entity in the Home Country shall refer to the Games, any Olympic team
or the year of the games, imply any connection with the Games, any Olympic
team or the year of the Games. The City shall ensure that no sponsorships
or marketing rights identified with the City, the Games or the period
in which the Games will be held shall be granted without the prior approval
of the IOC Executive Board.(8)
Clause 8 defines the words, and phrases to be licensed: including
'Games City', 'Sydney 2000', 'Olympic', 'Share the Spirit', and 'Team
Millennium', 'Paralympiad', or any combination of 'Paralympics', 'Games'
or 'Eleventh'.
Clause 9 makes it clear the Bill also covers aural or visual
representations suggesting a connection between the Sydney 2000 Olympic
or Paralympic Games.
Clause 11 defines 'commercial purposes', and effectively narrows
the reach of the Bill - because it leaves the use of the words, symbols
etc free for non-commercial use. 'Commercial use' is defined as using
the words, phrases etc to sell goods or services by suggesting the company
providing them is a Games sponsor.
Clause 14 gives the SOCOG and the Sydney Paralympic Organising
Committee (SPOC) the right to issue the licenses.
Clause 16 requires SOCOG to keep a register of licensed users
which may be inspected for free during normal business hours. (SOCOG may
make an entry on behalf of SPOC)
Clause 24 is of great importance to companies like Olympic Airways
already using words, phrases etc covered by the Act. This clause allows
them to go on doing so.
Clause 25 is most likely to lead to litigation. It allows companies
to use the phrases etc , without a licence, as long as they're just providing
information. The Explanatory Memorandum puts it this way.
Examples of such provision of information include the reporting of news
and presentation of current affairs, and the factual description of goods
or services provided by a business (such as stating that accommodation
is available at a hotel that is located near the Olympic site)...
However, clever marketeers and lawyers may well try to push the exemption
for a 'factual description of goods or services' over the fine line and
into the territory of ambush marketing.
SOCOG, if it continues its past form, is likely to be zealous in its
pursuit of perceived misuse.(9) In 1994, according to a Sun Herald journalist,
Alex Mitchell, SOCOG objected to the newspaper running a column entitled
'Olympic City Notebook' with a torch and flame symbol, claiming it could
be misleading under the Trade Practices Act 1974 because it implied
sponsorship or affiliation with the Olympic movement. Clause 25
would clearly allow newspapers to run columns of that nature.
Clause 33 empowers the Chief Executive Office of Customs to seize
goods allegedly misusing games words, phrases etc.
Clause 37 empowers the Federal Court or a State or Territory
Supreme Court to deal with impounded goods - to confiscate them, or return
them to their owner and compensate them if they were wrongly seized.
Clause 43 empowers a court to issue an order preventing a company
illegally using words, phrases etc.
Clause 45 empowers a court to order a company to publish advertisements
correcting a misuse, and clause 46 provides for court-ordered damages
if a licensed user has suffered a loss due to misuse. The Bill does not
provide for any other punitive or criminal penalties for breaches.
(1) The Sydney Morning Herald, May 25 1996
(2) ibid, March 21, 1996.
(3) Senate Legal and Constitutional References Committee, at p 57.
(4) ibid., at p. 22.
(5) ibid., at pp. 22 and 25.
(6) 1988 63 ALJR 35
(7) ibid., at p. 41
(8) Senate Legal and Constitutional References Committee, p16.
(9) ibid., p.93.
Bronwyn Young Ph. 06 277 2699
27 May 1996
Bills Digest Service
Parliamentary Research Service
This Digest does not have any official legal status. Other sources should
be consulted to determine whether the Bill has been enacted and, if so,
whether the subsequent Act reflects further amendments.
PRS staff are available to discuss the paper's contents with Senators
and Members and their staff but not with members of the public.
ISSN 1323-9032
© Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library, 1996.
This page was prepared by the Parliamentary Library, Commonwealth of
Australia
Last updated: 27 May 1996
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