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CONTENTS
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
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.
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.
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.
- Senate Legal and Constitutional References Committee, Cashing
in on the Sydney Olympics - Protecting the Sydney Olympic Games
From Ambush Marketing, March 1995, p. 57.
- Ibid.
Ian Ireland
12 February 1997
Bills Digest Service
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This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
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the public.
ISSN 1323-9031
Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library,
1997.
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Last updated: 25 March 1997
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