On 29 July, the Federal Court of Australia handed down its decision in Australian Olympic Committee, Inc. v Telstra Corporation Limited  FCA 857 in respect of the recent advertising campaign known as WE GO TO RIO.
The Australian Olympic Committee (AOC) alleged so-called ambush marketing under the Australian Consumer Law, as well as breach of the Olympic Insignia Protection Act 1987 (Cth). The Olympic Insignia Protection Act prohibits, among other things, use of a protected ‘Olympic expression’ for commercial purposes without a licence.
For many years Telstra was a licensed ‘team sponsor’ of the Olympic Games and was permitted to promote itself as such. While it no longer holds such rights, in June 2016 Telstra entered into an agreement with Seven Network as a ‘partner’ of Seven’s broadcast.
The AOC sought to restrain Telstra’s extensive marketing and advertising campaign which was described by the Court as ‘on just about any view, focused or themed around the forthcoming Rio Olympic Games’. The advertisements made a number of indirect references, including use of the Peter Allen song ‘I go to Rio’ as well as promoting Telstra’s premium App. In certain cases, the advertisements contained a disclaimer stating ‘Telstra is not an official partner of the Olympic Games, any Olympic Committees or teams’.
After a detailed consideration of the advertisements and various factual matters, the Court concluded:
‘These initial advertisements and videos are perhaps borderline in terms of whether they conveyed the alleged misleading or deceptive representation. On balance, however, it cannot be concluded that they convey the alleged misleading representation concerning sponsorship of or affiliation with an Olympic body. Nor would the advertisements lead a reasonable viewer to assume that Telstra sponsored or had an affiliation with an Olympic body.’
‘The important considerations again include the following: the words “Olympics” and “Olympic” are only used as part of a composite expression “Olympics on Seven” or in the context of Seven’s coverage of the Rio Games; the advertisements do not refer to any Olympic body or use any Olympic emblem or symbol; the advertisements do not show images of any member of the Australian Olympic team; the sports people depicted in the advertisement are not Olympic athletes; the advertisements are about watching the Rio Olympics on a mobile device in circumstances where, ultimately, it is made clear enough that the Olympic Games coverage is Seven’s Olympic coverage.’
‘Thus, the message is that Telstra’s association, involvement or sponsorship was with Seven, not with any Olympic body. That was not misleading or deceptive.’
This case seems to turn particularly on the facts. While Telstra ultimately proved to be on the right side of a ‘borderline’ case, it should nevertheless serve as a reminder for brand owners of the risks in sailing too close to the wind (particularly in areas monitored by proactive rightsholders).