Ensuring a home for international sporting events in Australia
On 27 March 2014, the Australian government introduced a Bill to regulate the commercial use of indicia and images associated with three major international sporting events taking place over the next four years:
- The Asian Cup 2015
- The Cricket World Cup 2015
- The Gold Coast 2018 Commonwealth Games
The Bill is expected to be enacted on July 1 2014. When enacted, it will replicate the regulations which were put in place to protect sponsorship and licensing revenue for the Sydney Olympics in 2000 and the Melbourne Commonwealth Games in 2006.
Staging an international sporting competition in Australia
Hosting major sporting events which showcase some of the world's best football players, cricketers and athletes benefits Australia from a tourist and trade perspective, and provides opportunities for the Australian public and Australian sportspeople to have greater access to sporting events and sport in general.
No to 'ambush marketing by association'
Revenue generated from television rights, ticket sales, sponsorship and licensing reduces the burden of funding such events, which would otherwise fall on the Australian government. However sponsors must have certainty that their investment will be protected – in other words, if they know that they are the only businesses that can directly benefit from association with the events. If businesses which do not sponsor events are able to use event indicia and images to create an impression of association with, or sponsorship of, the event (known as "ambush marketing by association"), thereby increasing sales and brand awareness without having paid for the privilege, then official sponsors may withdraw their support or decide not to enter into commercial arrangements with events, and overall event revenue will be reduced.
Australian Government supplementing the existing legislation to protect businesses
To protect the commercial rights of and investments made by sponsors and to protect the authorising bodies of sporting events from being undermined by the unauthorised commercial use of certain indicia and images associated with these events, the Australian Government is supplementing the existing legislation (including the Competition and Consumer Act 2010, the Trade Marks Act 1995 and the Copyright Act 1968) with special legislation, which will be in place for a period of time in the lead up to and during the events and then for one year after the completion of each event.
Key features of the Major Sporting Events Protection Bill
- Each of the events will have a list of agreed words and phrases associated with it, including variants of the event name and known abbreviations, although generic words such as 'cricket', 'football' and 'Commonwealth' will be excluded from the lists.
- A register of those agreed words will be published to provide consumers with confidence that goods and services purchased are official.
- Restrictions will apply to unlicensed commercial use of those agreed words, but the use of certain indicia and images, for the purpose of the provision of information, criticism or review, will be exempt.
- Potential remedies for unlicensed commercial use will include injunctions, damages and corrective advertisement. It will be the authorising body who may bring an action against an unauthorised user; enforcement will not be the responsibility of the Government.
- The Bill will be consistent with the Trade Marks Act 1995 and the Copyright Act 1968 in relation to the importation of goods infringing Australian trade marks and copyright and the ability of Customs to seize unauthorised goods, in order to avoid confusion.
- It will provide safeguards through civil proceedings for persons who believe that their goods have been wrongly seized to challenge authorising bodies and to reclaim their goods.
- It will not include any criminal offence provisions as these can be dealt with through existing legislation such as the Trade Marks Act 1995 and the Copyright Act 1968.
Why existing legislation was deemed inadequate for major sporting events in Australia
- As the Trade Marks Act 1995 and the Copyright Act 1968 do not protect common words, titles and short expressions, not all event indicia could have been trade marked.
- Research after the Sydney 2000 Olympics and the Melbourne 2006 Commonwealth Games confirmed that it was the special legislation which limited the unlicensed commercial use of protected indicia and images and enhanced competition, due to its deterrence and signalling effects, the enhanced ability of the authorising bodies to enforce their rights by threatening to take action under the special legislation and greater clarity regarding the existence and scope of intellectual property rights.
What to do if you are involved with a major sporting event
- If you are considering advertising or supplying goods or services in connection with any of the events, but are not an official event sponsor, then unless your proposed use fits within one of the exceptions (Clause 12 – Criticism, review and provision of information), you will need to ensure that your advertising, packaging or promotional material does not feature any of the prohibited words, numbers, expressions or images.
- If you are sponsoring an event, keep a regular watch over your intellectual property rights and look for potential cases of infringement. Remember that although the Bill will not become law until later this year, you may still be able to rely on the relevant existing legislation before the Bill comes into effect. When the Bill has been enacted, you will need to liaise with the authorising body of the event to ensure that your details appear on the register as an authorised user (Clause 16 – Register of authorised users).