Bills Digest 89 1995-96 Sydney 2000 Games (Indicia and Images) Protection Bill 1996


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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

Passage History

Date introduced: 8 May 1996
House: Senate
Portfolio: Industry, Science and Tourism
Commencement: Royal Assent

Purpose

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.

Background

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)

Main Provisions

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.

Endnotes

(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.

Contact Officer and Copyright Details

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

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

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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