In Australian Olympic Committee, Inc v Telstra Corporation Limited [2017] FCAFC 165 the Full Federal Court dismissed the Australian Olympic Committee (AOC's) appeal against the 2016 Federal Court decision Australian Olympic Committee, Inc. v Telstra Corporation Ltd [2016] FCA 857. In the 2016 decision the Federal Court dismissed the AOC's claims, finding that Telstra's 'I go to Rio' advertisements did not mislead or deceive the public into thinking Telstra was a sponsor of the Australian Olympic team. Relevantly, in the decision it was noted that the concluding message of the television advertising had been revised to make it clear that 'Telstra is Seven's broadcast partner', and the International Olympic Committee (IOC) had already approved the content of the Telstra advertising. The Federal Court found that the television advertising conveyed an association between Telstra and Seven, and not between Telstra and the Australian Olympic team.

Background

The AOC originally initiated proceedings against Telstra in July 2016, after Telstra ran a series of television commercials which the AOC argued were 'ambush marketing' of a type that is prohibited by the terms of the Olympic Insignia Protection Act 1987 (Cth) and amounted to misleading and deceptive conduct in breach of provisions of the Australian Consumer Law as it misled consumers into believing Telstra was the telecommunications partner of the Australian Olympic team. The AOC's complaint focused on Telstra's use of the words 'Olympic' and 'Olympic Games'. The television advertisements consisted of a series of promotions on Channel Seven's Olympic Games broadcast for access to Seven's 'Olympics on 7' viewing app made available to Telstra customers, and describing Telstra as its 'official technology partner'. Seven was the official broadcaster of the Olympic Games under the terms of a media rights agreement with the IOC, and had licensed the broadcast sponsorship and advertising rights to Telstra. Telstra has previously held the rights to be the Australian Olympic team's telecommunications sponsor, however Optus secured the rights in 2016.

The AOC argued that Telstra had deliberately designed the advertisements for the app in a way that indicated it was the official sponsor for the Australian Olympic team for the 2016 Rio Games. The AOC also challenged another Telstra promotion which advertised Telstra data plans using a version of Peter Allen's song 'I go to Rio' to Australian customers who were travelling to Brazil for the Olympics.

Full Federal Court Decision

The Full Court upheld the Federal Court's finding that a hypothetical reasonable person viewing the advertisements would not necessarily know about or recollect Telstra’s previous sponsorship of the Australian Olympic team, let alone turn his or her mind to that fact when viewing the advertising. Furthermore, it found that: 'As to Seven's advertisements, he (Justice Wigney) found that they simply confirm that Telstra's sponsorship arrangement is with Seven. Those findings of fact were open to the primary judge.' (at [155]).

Justices Greenwood, Nicholas and Burley also agreed with Federal Court and the comments of Justice Wigney who, in regards to the data plan advertisement found that 'the only hint that the advertisements related in any way to the Rio Olympic Games is the 'I go to Rio' soundtrack.' (at [156]). Their Honors found no error in Justice Wigney's conclusion that the Peter Allen soundtrack reference did not make the advertisement misleading or deceptive under the Australian Consumer Law.

Implications

This decision blurs the line between what competitors can and can't do if they are not the official sponsors of an event, and may have implications for corporate sponsorships.