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
Date introduced: 8 May 1996
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
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
The Sydney Olympic Games will cost more than $3 billion dollars
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
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
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
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
- During the Seoul Summer Games in 1988, a T-shirt manufacturer
designed a logo 'Body and Seoul' in honour of 'the Summer
- 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
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.
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
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
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
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
Clause 14 gives the SOCOG and the Sydney
Paralympic Organising Committee (SPOC) the right to issue the
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
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
(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,
(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
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© Commonwealth of Australia 1996
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Last updated: 27 May 1996
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