Bills Digest 102 1996-97 Sydney 2000 Games (Indicia and Images) Protection Amendment Bill 1996


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History

Sydney 2000 Games (Indicia and Images) Protection Amendment Bill 1996

Date Introduced: 18 September 1996
House: House of Representatives
Portfolio: Industry, Science and Tourism
Commencement: Royal Assent

Purpose

Extend the protection accorded to licensed users of Sydney 2000 Games indicia and images by the Sydney 2000 Games (Indicia and Images) Protection Act 1996 (the Principal Act) In particular, where a person has used Sydney 2000 Games indicia and images without authorisation, the Bill will make it an offence for another person to supply, offer, expose or keep the goods or services that contain the unauthorised indicia and images.

Background

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.(1)

The Joint Submission by NSW and the Sydney Organising Committee for the Olympic Games (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 Macdonald's, paid for air time during the telecast to promote itself by using spoofs of winter sports, while carefully avoiding mention of the Olympics.

To protect official sponsors from these sorts of attacks, the Principal Act was enacted. The Principal Act set up a licensing scheme limiting the use, for commercial purposes, of a range of words, phrases and images. The scheme established by the Principal Act prohibited 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 Principal Act contains a number of exceptions allowing:

  • for the continued operation of rights and liabilities under the Trade Marks Act 1995; and
  • the provision of information, criticism and review of the Games, such as in newspapers, magazines and broadcasts.

The exemption for factual information is an important difference between the Principal Act 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 Authority6 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.

Exemption for Sporting Bodies

The Second Reading speech to the Principal Act also makes it clear that it 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.

This is 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.(2)

Rationale for amendments

As noted in the Second Reading Speech to the Bill, the Principal Act only allows actions to be taken against the person who applied the indicia and images to the goods or services. The Principal Act does not extend to the situation where a person other than the person who applied the indicia and images supplies, offers, exposes or keeps the goods or services that contain the unauthorised indicia and images. The major amendments proposed by the Bill extend the protection accorded to licensed users of indicia and images to cover this situation.

Main Provisions

Schedule 1 Amendments

A new section 11, defining the term 'use for commercial purposes', is substituted in the Principal Act by item 2 of Schedule 1 of the Bill.

The principal effect of the proposed section is to extend the definition of 'use for commercial purposes' of Sydney 2000 Games indicia and images to the following situation, namely:

  • when a person (the first person), who is not a SOCOG, SPOC (Sydney Paralympic Olympic Games Organising Committee) or a licensed user, causes Sydney 2000 Games indicia or images to be applied to goods or services in the course of advertising or a way which is likely to increase demand, and in a way which a reasonable person would interpret as suggesting they are or have been a sponsor of the Sydney 2000 Olympic Games, the Sydney 2000 Paralympic Games, or both, or any officially arranged event; and
  • when another person (the second person) supplies, or offers to supply those goods or services, or exposes those goods for supply, or keeps the goods for supply by themselves or another person. In such a case the supply, offer, exposure or keeping is taken to be use for commercial purposes.

In practical terms, the proposed section means that if Sydney 2000 Olympic Games indicia or images are applied to goods or services by an unlicensed person, the supply, offer, exposure or keeping of the goods by another person is use for commercial purposes and thus an unauthorised breach of the Principal Act.

Item 5 of Schedule 1 inserts a new section 13A in the Principal Act which lists the ways a person will be taken to have breached section 12 which specifies who may use Sydney 2000 Games indicia and images. For example, a person other SOCOG, SPOC, or a licensed user must not use Sydney 2000 Games indicia and images for commercial purposes.

Proposed section 13A provides that a person will be taken to have breached section 12 if they have:

  • attempted to breach section 12,
  • aided, abetted, counselled or procured a person to breach section 12;
  • induced, or attempted to induce, a person, whether by threats or promises or otherwise, to breach section 12;
  • been in any way, directly or indirectly, knowingly concerned in, or party to, the breach by a person of section 12; or
  • conspired with others to breach section 12.

Endnotes

  1. Senate Legal and Constitutional References Committee, Cashing in on the Sydney Olympics - Protecting the Sydney Olympic Games From Ambush Marketing, March 1995, p. 57.
  2. Ibid.

Contact Officer and Copyright Details

Ian Ireland
12 February 1997
Bills Digest Service
Information and Research Services

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.

IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1323-9031
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, 1997.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 25 March 1997



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