Bills Digest no. 7 2005–06
Melbourne 2006 Commonwealth Games (Indicia and Images)
Protection Bill 2005
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
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Commonwealth Games (Indicia and Images) Protection Bill
Introduced: 26 May 2005
House: House of Representatives
Portfolio: Arts and Sport
To provide protection of sponsorship and
licensing revenue for the Melbourne 2006 Commonwealth Games ( M2006
Games ) through the regulation of use of indicia and images.
This Bills Digest was prepared after the Bill
had been passed by Parliament. For a detailed discussion on ambush
marketing and the regulation of indicia and images please refer to
Digest for the Sydney 2000 Games (Indicia and Images)
Protection Act 1996 ( Sydney Olympics Act ).(1)
The M2006 Games will be held on 15 to 26 March
2006, and are budgeted at $1.1 billion.(2)
The Victorian Government will invest $697
million in the M2006 Games.(3) The Commonwealth
Government will contribute over $100 million in direct financial
assistance and approximately $177 million in support services to
the M2006 Games.(4) The remainder of the funding is to
come from sponsors, ticket sales, TV rights and merchandise.
Corporations may pay millions of dollars to be
key sponsors of an event such as the M2006 Games.(5) For
that sort of money, corporations expect exclusivity of recognition
and financial benefits to flow from the sponsorship.
The exclusivity of sponsorship of an event
like the M2006 Games can be undermined by businesses engaging in
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 of a wide range of marketing activities; unauthorised
in the sense that neither the controller of the commercial rights
in such events, usually the relevant government body, nor its
commercial agents, has sanctioned or licensed the
Ambush marketing has been particularly topical
in the context of the Olympics.(7)
In preparation for the Sydney Olympic Games,
the Federal Government enacted the Sydney Olympics Act to limit the
use of Sydney Olympic Games indicia and insignia in order to
protect the revenue received from official sponsors of the Sydney
Olympic and Paralympic Games.
The Victorian Government has enacted the
Commonwealth Games Arrangements Act 2001 ( Victorian Act )
which provides for an authorisation procedure and a register of
authorised users for M2006 Games indicia and images.(8)
In addition, the Victorian Act restricts aerial advertising within
the vicinity of M2006 Games venues, in an attempt to stop
non-sponsors from taking up prominent advertising positions during
the period of the M2006 Games.(9)
Together with the Victorian Act, this Bill
puts in place a regulatory regime for the use of M2006 Games
indicia and images similar to the regime used for the Sydney
The Bill has the potential to substantially
reduce some ambush marketing behaviours, such as the selling of
counterfeit M2006 Games goods and services.
The Australian Customs Service reports that
there were 119 seizures of 149,819 items of unauthorised or
unlicensed products pursuant to the Sydney Olympics
Act.(10) The Sydney Olympic Games Organising Committee
hired 60 people to patrol Sydney Olympic venues looking for goods
and services which might be in breach of the Sydney Olympics
What the Bill will not prevent is the clever
and opportunistic advertising by non-sponsors who, without using
M2006 Games indicia and images, still infer an association with the
M2006 Games. One example of this type of advertising is Qantas
pre-Sydney Olympics billboards. While not a sponsor of the Sydney
Olympics, Qantas did sponsor individual athletes, such as Susie O
Neill and Ian Thorpe, and those athletes featured on billboards
around Sydney with the slogan Share the Spirit .(12)
So prolific was Qantas advertising campaign
before the Sydney Olympics that a poll in May 2000 showed that
Qantas had a higher recognition as a sponsor of the Sydney Olympics
(although it was not a sponsor) than Ansett,(13) which
paid an estimated $40 million to be an official
sponsor.(14) On the only occasion that Ansett pursued an
injunction against Qantas for its pre-Olympic advertising, the
matter settled out of court, with the only change in Qantas
behaviour being that a line was added to Qantas advertisements
noting that Qantas was not a sponsor of the Sydney
Therefore, the Bill does not offer much
assurance to the corporations which have paid millions of dollars
to be official M2006 Games sponsors that they will be protected
against creative competitors whose marketing campaigns stay within
the boundaries of the Bill.
Clause 7(1) defines M2006
Games images as any visual or aural representations that, to a
reasonable person, in the circumstances of the presentation, would
suggest a connection with the Melbourne 2006 Commonwealth Games
Clause 7(2) defines M2006
Games indicia, and includes the following phrases: Melbourne 2006
Commonwealth Games ; Melbourne Commonwealth Games ; Melbourne Games
; Melbourne 2006 Games ; Commonwealth Games ; Australian
Commonwealth Games ; Friendly Games ; Queen s Baton Relay ; and
M2006 . Clause 7(2)(c) provides that the combination of certain
words and numbers is also M2006 Games indicia.
The definition of M2006 Games indicia in
clause 7(2) includes indicia represented in a language other than
Clause 9 defines the two
situations in which M2006 Games indicia and images are used for a
commercial purpose. The first situation (clause 9(2)) is where a
person causes M2006 Games indicia or images to be applied to goods
or services for the primary purpose of advertising, promotion or
enhancement of demand, and the application of the images or indicia
suggests a sponsorship, or other support arrangement, of the M2006
Games or an event connected with the M2006 Games.
The second situation (clause 9(3)) has all the
same elements as clause 9(2), and involves a second person who:
- supplies or offers to supply the goods or services; or
- exposes the goods for supply; or
- keeps the goods for supply by themselves or another.
Clause 10 sets out a
presumption that a sponsorship, or other support, arrangement
exists (for the purposes of clause 9(2) and (3)) where M2006 Games
indicia and images are applied to a good or service for the primary
purpose of enhancing demand for that good or service.
Clause 11 provides that where
M2006 Games indicia and images are used for the primary purpose
a) criticism or review, such as in a
newspaper, magazine or broadcast; or
b) the provision of information, such
as the reporting of news and current affairs,
then the application or use of the M2006 Games
indicia and images is not for a commercial purpose.
Clause 12 is the primary
provision regulating the use of M2006 Games indicia and images.
Clause 12(1) provides that a person other
a) the M2006 Corporation; or
b) an authorised user (as defined in
must not use the M2006 Games indicia and
images for commercial purposes. Clause 12(4)
extends the prohibition in clause 12(1) to any indicium that so
closely resembles a Melbourne 2006 Commonwealth Games indicium that
a reasonable person is likely to mistake it for the Melbourne 2006
Commonwealth Games indicium .
Clause 12(2) provides for the
M2006 Corporation, the Australian Commonwealth Games Association
and the Commonwealth Games Federation to use M2006 Games indicia
and images for commercial purposes.
Clause 12(3) limits the use
that authorised users may make of M2006 Games indicia and images to
the commercial purposes licensed to them under section 56D of the
Part 4 Division 2 covers the
importation of goods which have M2006 Games indicia and images
applied to them. In particular, clause
20 allows for authorised users or the M2006 Games
Corporation to give a notice to the Customs CEO objecting to the
importation of goods with M2006 Games indicia and images applied to
them, where the designated owner of those goods (as defined in
clause 17) is not authorised to use the goods for commercial
Part 4 Division 3 sets out
the remedies for contravention of clause 12, including injunctions,
interim injunctions, corrective advertisements, damages or accounts
of profit. Corrective advertisements may only be applied for by the
M2006 Games Corporation (clause 33).
Clause 47 is a sunset clause,
with the Act ceasing to have effect on 30 June 2006.
While the Bill will reduce some of the more
obvious ambush marketing behaviours, such as the selling of
counterfeit goods and services, there is still scope for
non-sponsors marketing campaigns that make associations between
their goods and services and the M2006 Games.
- Bronwyn Young, Sydney 2000 Games (Indicia and Images)
Protection Bill 1996 , Bills
Digest, no. 89, Department of the Parliamentary Library,
Canberra, 1995 96.
- Phillip Hudson and Kirsty Simpson, $100m Games boost in Budget
, Sunday Age, 15 February 2004, pp. 1 and 10.
- Sen. the Hon. Rod Kemp (Minister for the Arts and Sport),
Government support for M2006 Games, media release, 11 May
- Michelle Gilchrist, A sporting chance , The
Australian, 15 March 2004, p. 10. Although the amount of
Qantas sponsorship of the M2006 Games is undisclosed, this article
estimates that Qantas sponsorship is between $10 and $20
- Senate Legal and Constitutional References Committee,
Cashing in on the Sydney Olympics: Protecting
the Sydney Olympics from Ambush Marketing,
Canberra, 1995, p. 22.
- Examples of marketing strategies used at previous Olympics
which have been discussed in the context of ambush marketing
include: Nike s sponsorship of individual members of the US
basketball team at the Barcelona Olympics, when Reebok was an
official US Olympic team sponsor; non-Olympic sponsor Nike s You
Don t Win Silver, You Lose Gold billboards prominently displayed
throughout Atlanta in 1996; Qantas sponsorship of pre-Olympic
events such as the swimming selection trials, but not sponsoring
the Sydney 2000 Olympics.
- Part 5A Division 2 of the Victorian Act.
- Section 56KG of the Victorian Act.
- Australian Customs Service, Annual Report 2000 01, p.
- Stephen Dabkowski, Games will protect its brands , Sydney
Morning Herald, 3 June 2000, p. 55.
- Stephen Dabkowski, Women lead the way in Olympics support:
survey , The Age, 20 June 2000, p. 5.
- Stephen Dabkowski, Buckle up for Games air war , The
Age, 21 August 2000, p. 1.
- John Lehmann and Michael McGuire, Steal a deal , The
Australian, 20 September 2000, p. 19.
9 August 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
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© Commonwealth of Australia 2005
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