People love the Olympics and many want their businesses to bask in the reflected glory, without paying millions of dollars to be an official sponsor.
Over the last 4 years, the rules of the game have changed. This Guide provides an outline of key areas that may affect your marketing during Rio 2016. Below is important information for Olympic loving businesses that are not official sponsors.
The Australian Olympic Committee (AOC) is the owner of the copyright in the Olympic symbol (the rings) under the Olympic Insignia Protection Act 1987 (Cth). Use of the symbol by unlicensed businesses therefore may result in copyright infringement.
The Act also prohibits the use of ‘protected Olympic expressions’, namely, ‘Olympic’, ‘Olympics’, ‘Olympic Games’, ‘Olympiad’, and ‘Olympiads’, for commercial purposes (such as promotion of products), if that use would suggest sponsorship to a reasonable person. For example, if a burger chain was to sell a mouth-watering ‘Olympic burger’, the AOC would likely be none too pleased.
The Act also prevents the registration of a trade mark that contains, consists of or resembles the Olympic motto, Olympic rings, the Olympic torch and flame, or any other design registered under the Act.
Keep in mind that the Australian Consumer Law continues to operate and so businesses must refrain from engaging in misleading or deceptive conduct, even if it is not expressly banned under the Olympic Insignia Protection Act. For example, businesses that use the word ‘Olympian’ (which is not a ‘protected Olympic expression’) must do so in a way that does not mislead consumers into falsely believing that the business is affiliated with the Olympics or a particular Olympian.
The AOC also enforces its rights through direct agreements with Olympic competitors themselves. These contracts have a great impact on non-official sponsor businesses, as athletes are often bound to wear a certain sponsor’s brand of clothing or footwear within their respective AOC team agreement. For example, during the 2012 London games, Nike provided shoes to certain UK competitors, which they anticipated would be worn on the podium. However, this would have violated the British Olympic Association’s team contract, which specified that Adidas owned those rights. As such, unofficial sponsors must consider the terms of athlete agreements or risk losing exposure.
In the past, there has been a ‘blackout period’ before, during and after the Olympics, in which the only sponsorship advertising allowed to athletes has been from official Olympic sponsors. This brand policing sparked a social media backlash, with athletes using the #wedemandchange hashtag on Twitter to draw attention to the unfairness of impeding athletes’ abilities to market themselves at the peak of their visibility. The blackout also meant that athletes could not publicly thank companies for their help in training unless they happened to be an Olympic sponsor.
For the first time ever, athletes will not be in breach of their agreements if non-sponsors run advertising campaigns (including those based on social media platforms) throughout the traditional blackout period (27 July to 24 August), provided they:
- Obtained approval from the IOC by submitting their advertising campaign and media schedule before 27 January 2016;
- Run the advertising campaign consistently for a period before the Olympics begin (the latest start date allowed was March 27); and
- Ensure their advertising is sufficiently generic. That is, the advertising must not create any impression of a commercial connection with any Olympic property or use any Olympic-related terms in particular contexts (e.g. ‘medal’, ‘gold’, ‘games’).
The change, announced in June last year, benefits athletes and a broader spectrum of brand-owners. As a side effect, requiring advertisements to air months before the commencement of the Olympics also gives a leg-up to Australian sporting culture and television networks. The changes to the blackout period may also lessen the extent of ambush marketing attempts by non-sponsors.
When it comes to ambush marketing, there is a fine line between innovation (non-infringing conduct) and illegality (infringing conduct) when capitalising on the hype surrounding sporting events. Beats Electronics gave out free headphones to athletes at the 2012 London Olympics, resulting in gratitude and free exposure (innovative!), but industry lobby group Australian Mining was not so lucky when it featured cyclist Anna Meares speaking about her London Olympic hopes (infringing!) – the television commercial ultimately had to be pulled.
Telstra is currently under fire for a television advertising campaign which featured Peter Allen’s song ‘I Go to Rio’ and ended with the words ‘Official Technology Partner of Seven’s Olympic Games Coverage’. The telco giant’s long term sponsor relationship with the AOC ended in 2015, and has since been replaced by rival Optus. In response to legal threats, Telstra pulled the advertisement but has since relaunched it with disclaimers and a removal of the word ‘Olympics’ – not enough, however, to avoid the AOC’s condemnation for ‘deceiving’ Australians. The outcome of the AOC’s Federal Court action remains to be seen. Businesses should note Telstra may be in trouble despite the conduct complained of taking place outside the blackout period.
Brand owners must ensure that any advertising or publicity stunts do not, when taken as a whole, suggest a connection with the Olympics. Businesses should be conscious of this when posting on social media, for example congratulatory tweets/status updates – will they unwittingly overstep the line? Additionally, businesses should be aware of the common law action of passing off – does the ambush marketing attempt misrepresent the goods of one brand owner as the goods of another?
Overall, non-sponsor businesses planning on running advertising or marketing campaigns should:
- Make sure relevant employees are aware of the legal restrictions in developing campaign ideas;
- Seek legal advice as to whether or not their proposed campaign complies with IP and advertising laws;
- Understand the risks of ambush marketing;
- Avoid using the Olympic rings, and ensure that any use of protected Olympic words would not suggest sponsorship;
- Avoid engaging in misleading or deceptive conduct; and
- Avoid damaging the reputation or goodwill of an official sponsor.