Association with the Olympic brand is a marketer’s dream. Through national and international law, the Olympic Movement is afforded considerable protection against the practice of “ambush marketing” and unauthorised uses of Olympic Insignia. Recently, the Federal Court had opportunity to consider the scope of protection afforded in AOC v Telstra.
Australian Olympic Committee Inc v Telstra Corporation Ltd  FCA 85
- The Olympic Games are often described as a celebration of humanity – a platform for inspiring and wholesome storytelling, where sentiments of national pride and international unity are fostered through one glorious fortnight of peaceful sporting competition.
- Association with the Olympic brand is indeed a marketer’s dream – presenting a golden opportunity to leverage the excitement surrounding the Games for commercial gain. Through national and international law, the Olympic Movement is afforded considerable protection against the practice of “ambush marketing” and unauthorised commercial uses of Olympic Insignia.
- Unauthorised attempts to commercially exploit the Olympic Games are rigorously scrutinised by the governing bodies. Last week, the Singapore National Olympic Council issued warnings to various companies seeking to “piggy back” off the success of gold medal-winning swimmer Joseph Schooling. An earlier case involved an application for injunctive relief by the New Zealand Olympic Games Association against Telecom NZ claiming unauthorised ambush marketing and misleading and deceptive conduct in commercials with the words “RING, RING, RING, RING, RING” appearing in the arrangement and colours of the Olympic rings.
- Recently, the Federal Court had opportunity to consider the scope of protection afforded specifically to Olympic IP, as well as arising under the broader legal framework applying more generally.
Australian Olympic Committee v Telstra
- In AOC v Telstra, the Australian Olympic Committee (“AOC”) sought injunctive relief in respect of Telstra’s “I Go To Rio” advertising campaign. The dispute arose out of a partnership agreement between the Seven Network (the official Olympic Games broadcaster) and Telstra, to develop the “Olympics on 7 App” to view Seven’s Rio Olympics coverage on Telstra’s broadband network. As part of Telstra’s campaign to promote the App, it used the protected expressions “Olympics” and “Olympic Games” in the phrases “Olympics on 7 App”, “Olympics on 7”, and “Seven’s Olympic Games Coverage”.
- The AOC alleged breaches of s 36 of the Olympic Insignia Protection Act 1987 (“OIP Act”), and misleading or deceptive conduct and false or misleading advertising under ss 18 and 29(1)(g)-(h) of the Australian Consumer Law (“ACL”).
- Despite the Olympic Charter providing that the International Olympic Committee (“IOC”) owns all Olympic-associated IP (including the Olympic Symbol, flag, motto, anthem, identifications, designation, flame and torches), the OIP Act provides that the AOC is the copyright owner of the Olympic Symbol and certain Olympic designs, and the authorised user of protected Olympic expressions, within Australia. The OIP Act also provides that that the Olympic motto, symbol and certain other images must not be registered as trademarks. The OIP Act was enacted to enable the AOC to raise funds, through the commercialisation of Olympic insignia, to assist Australia to field the best possible Olympic team.
- Section 36 of the OIP Act prohibits the use of protected Olympic expressions (such as “Olympics”, “Olympic Games” and “Olympiad”, but not “Olympian”) for commercial purposes by any person other than the AOC, unless permitted by the AOC.
- Section 30 sets out two situations in which a person is said to use a protected Olympic expression for “commercial purposes”. One situation involves use which would suggest to a reasonable person that the user is or was a sponsor, or provider of sponsorship-like support, for the AOC, IOC, Olympic Games, the organising committee, Australia’s Olympic team or any section or member thereof.
- Justice Wigney considered that Telstra’s marketing documents “plainly reveal that Telstra intended to exploit its commercial agreement with Seven as a way of associating itself, for marketing purposes, with the Olympic Games” (at ). Evidence was led that Telstra (no longer an Olympic sponsor in any capacity) knew there were limits to what it could say or imply, and his Honour commented that Telstra “wished to push the envelope as far as it could” (at ).
- His Honour focused on what was, in fact, suggested to a reasonable person (at ). Finding in Telstra’s favour, he noted the context in which the Olympic expressions were used (being the Seven App), that disclaimers on revised commercials stated that Telstra was not an official sponsor (at ), the lack of any express mention or reference to the IOC, AOC etc (to suggest any sponsorship or sponsorship-like association (at )), and the fact that no current or former Olympians, nor any Olympic symbols, flags or emblems, were featured in any of the advertising material. He commented that, for example, the words “Official Technology Partner of Seven’s Olympic Games Coverage” and “Olympics on 7’ (using Seven’s logo) “tend to suggest that Telstra’s relationship in relation to the broadcast is with Seven, not any Olympic body” (at ). Moreover, while the ACL claims were broader than the OIP Act claim, focusing on the overall impression conveyed (at ), His Honour decided the claim on much the same basis.
Take away lessons
- Olympic-themed advertisements are not in and of themselves infringing – what must be suggested to the reasonable person is that the advertiser was a sponsor or provider of sponsorship-like support.
- With increased legislative intervention, brands like Telstra are likely to be acutely aware of the fine line to be drawn between a legitimate advertisement of a commercial relationship and an ambush. Whilst cases like Telstra show that statutory protection is not infallible or absolute, the case serves as a timely reminder of the care that should be taken by advertisers when advertising against an Olympic backdrop.