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CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Intellectual Property Laws Amendment
(Border Interception) Bill 1999
Date Introduced: 25 August 1999
House: House of Representatives
Portfolio: Industry, Science and Resources
Commencement: Royal Assent
To amend the Sydney 2000 Games (Indicia and
Images) Protection Act 1996 and the Trade Marks Act
1995 to enable the CEO of Customs to determine, under those
Acts, the 'designated owner' of imported goods.
The Sydney 2000 Games (Indicia and Images)
Protection Act 1996 (the Sydney 2000 Games Act) protects
official sponsors of the Sydney Olympic and Paralympic Games from
'ambush' or 'parasitic' marketing practices by commercial rivals.
The legislation also empowers the Australian Customs Service to
seize goods suspected of contravening the legislation.
Ambush Marketing
'Ambush', or 'parasitic' marketing is a term
used to denote:
the unauthorised association by businesses of
their names, brands, products or services with a sports event or
competition through any one or more of 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)
Essentially, corporations using ambush marketing
are trying to reap a commercial benefit by associating themselves
with a particular event, without paying the price. The Joint
Submission by the NSW Government 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. (It is important to note, however, that some of the companies
accused, including GMH, denied the allegation.)
-
- The Nike/Reebok 'Sneakers War'. During the 1992 Barcelona
Summer Games, 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 that 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.(2)
To protect official sponsors from these sorts of
attacks, the Sydney 2000 Games (Indicia and Images) Protection
Act 1996 set 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 words, phrases or
images 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'; 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.
Included in the list, at sub-section 8(c) is any
combination of the words '24th' (however spelt or represented) and
'Olympic' or 'Games'. The Sydney 2000 Olympic Games are officially
described as the Games of the XXVII Olympiad (not the 24th Olympic
Games). The term Olympiad designates the period of four successive
years which begins with the Games of the Olympiad, includes the
Olympic Winter Games, and ends with the opening of the Games of the
following Olympiad. The Olympiads are numbered consecutively from
the first Olympic Games of modern times, held in Athens in 1896.
The principal legislation would therefore appear to permit products
to be produced with a combination of the words '27th' and
'Olympiad'.
Exemptions
The Sydney 2000 Games 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 factual 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 Sydney 2000 Games Act and an
earlier Act, the Australian Bicentennial Authority Act
1980 (Cwth). The earlier Act 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(3) the High
Court ruled that 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 that the
legislation allowed the Authority to regulate the use of common
expressions, and made unauthorised use a criminal offence.
In his Second Reading Speech on this Bill, the
Parliamentary Secretary, Hon Warren Entsch, stressed that the
Sydney 2000 Games Act does not affect the community's fundamental
right to freedom of expression. He said that '[t]his is
particularly the case in relation to words that have passed into
common language. It must therefore be emphasised that restrictions
on the use of games indicia and images apply only to unlicensed
commercial use of the protected indicia and images'.(4)
Exemptions for Sporting Bodies
The Second Reading Speech on the Sydney 2000
Games Bill made it clear that the Act 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.
Nevertheless, the Government still recommends that these bodies
negotiate Memorandums of Understanding with 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 Sydney 2000 Games Act for sporting bodies.
The Host City Contract requires that Sydney (as
Host City), the Australian Olympic Committee (AOC) and SOCOG ensure
that there are no other marketing programs in the country relating
to the Games. In particular:
they shall ensure that no marketing programmes
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 prior
approval of the IOC Executive Board.(5)
Paying for the Games
The Sydney Olympic Games will cost more than $2
billion dollars to stage.(6) Commercial sponsorship is expected to
provide a large slice of that - $840 million according to recent
estimates(7). Sponsorship targets have fluctuated. The initial
target set in 1993 was $622 million, growing to $873.7 million in
1998, but cut to $840 million in 1999. It was reported in early
August 1999 that approximately $700 million had been raised in
sponsorship. The shortfall of $140 million consists mostly of local
sponsorship because The Olympic Program (TOP) international
sponsorship that is negotiated by the IOC has been secured or is to
be signed in the near future.(8) Principal international Olympic
sponsors pay about $US40 million per category for exclusive
rights.(9) All sponsors will want to be sure of getting their
money's worth before they sign up. In addition, the Host Country 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.
Other sources of revenue for the Sydney Games
are television rights (over $1 billion(10)), ticket sales ($343
million from the first round of sales to Australians(11)), and
consumer products (estimated at $65.2 million in 1998(12)).
Interception of Parasitic
Imports
Part 4 of the Sydney 2000 Games Act includes
provisions to restrict the importation of goods that seek to ambush
sponsorship arrangements so that the revenue anticipated from
sponsorship may be preserved. These border interception provisions
enable the Australian Customs Service to seize imported goods that
have Sydney 2000 Games indicia or images applied to them, when it
appears to the Chief Executive Officer (CEO) of Customs that the
designated owner is not authorised, or licensed under the Act, to
use the indicia or images for commercial purposes.
Having seized the goods, the Australian Customs
Service (Customs) is obliged to advise both the designated owner of
the goods, and the relevant organising committee or licensed user.
The organising committee or licensed user then has ten days
following seizure to commence infringement proceedings.
The Current Amendments
This Bill is intended to correct a perceived
discrepancy in the border interception provisions of the
legislation. At present section 29 of the Sydney 2000 Games Act
defines the 'designated owner' as the person identified as the
owner of goods in the import entry made in relation to the goods
under section 68 of the Customs Act 1901. Section 68 of
that Act excludes several types of goods from the general
requirement to be entered, including goods consigned by post worth
less than $1000, or goods worth less than $250 consigned by other
means. Goods which are not entered do not have a designated owner,
and as a result, Customs cannot seize them because there is no
designated owner to notify.
The effect of the proposed amendments is to
empower Customs to determine that a person is the owner of goods,
thereby enabling them to seize all imported goods that are subject
to a notice of objection and seek to ambush games marketing. In his
Second Reading Speech the Parliamentary Secretary stressed that the
amendments made by this Bill are intended only to apply to goods
that are used for commercial purposes, and not to goods imported
for personal use.(13)
Amendments to the Sydney 2000
Games (Indicia and Images) Protection Act 1996
Item 2 inserts new
section 29A which allows the CEO or an officer of Customs
to determine that a person is the 'designated owner' of goods, if
that person is an 'owner' within the meaning of subsection 4(1) of
the Customs Act. The definition of an owner in respect of goods in
subsection 4(1) of the Customs Act states:
'includes any person (other than an officer of
Customs) being or holding himself out to be the owner, importer,
exporter, consignee, agent, or person possessed of, or beneficially
interested in, or having any control of, or power of disposition
over the goods'.
Item 1 then amends the
definition of 'designated owner' in Section 29, so that where
no-one is identified as the owner of goods on the import entry,
then the 'designated owner' is the person so determined in
accordance with new section 29A.
Amendments to the Trade Marks
Act 1995
The effect of items 1 and 2 is
to make a similar amendment to the Trade Marks Act.
-
- Senate Legal and Constitutional References Committee,
Cashing in on the Sydney Olympics: protecting the Sydney
Olympic Games from ambush marketing, March 1995, p 22.
- ibid., pp. 24-27.
- 1988 63 ALJR 35.
- Second Reading Speech, Intellectual Property Laws Amendment
(Border Interception) Bill 1999, House of Representatives
Debates, 25 August 1999, p 6928.
- Senate Legal and Constitutional References Committee, op. cit.,
p 16.
- Second Reading Speech, Intellectual Property Laws Amendment
(Border Interception) Bill 1999, House of Representatives
Debates, 25 August 1999, p. 6928. The NSW Audit Office's
Review of Estimates shows that the net cost to the NSW Government
of the Sydney Olympics and Paralympics is estimated to be $2,309
million out of a total Games Budget of $5,916.6 million. NSW Audit
Office, Performance audit report: the Sydney 2000 Olympic and
Paralympic Games: review of estimates, 1998, p 58.
- 'Games funds chief resigns', Australian Financial
Review, 6 August 1999, p 6.
- NSW Audit Office, Performance audit report: the Sydney 2000
Olympic and Paralympic Games: review of estimates, 1998, p 64.
- Senate Legal and Constitutional References Committee, op. cit.,
p 57.
- Sydney Morning Herald, March 21, 1996.
- 'Final tally indicates over one million Australians have
applied for Games tickets more than one year out', SOCOG Press
Release, 15 August 1999.
- NSW Audit Office, op. cit., p 64.
- Second Reading Speech, Intellectual Property Laws Amendment
(Border Interception) Bill 1999, House of Representatives
Debates, 25 August 1999, p 6930.
Rosemary Bell
31 August 1999
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 1999
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