Within the same week, the Tokyo Olympic Games finally got underway after a 12-month delay, and Brisbane was awarded the rights to host the 2032 Olympic Games. Olympic fever (often called five ring fever) is in full flight. Other than COVID-19, what are the Olympic fever risks to individuals and businesses?
It is tempting while the Olympic Games are on or when a local city is awarded the right to host an Olympic Games to get caught up in the excitement and conduct Olympic themed advertising or promotions.
Well known individuals, organisations or events have rights against persons making unauthorised suggestions of affiliation or endorsement. Not surprisingly, at the top of the podium for protection of their intellectual property and related rights is the Olympic Games.
A party using insignia such as names, logos, or imagery of another party without authorisation could potentially infringe or contravene one of more of the following laws:
For example, the following logo is protected as an artistic work for the purposes of copyright law. It is also protected as a registered trade mark in Australia (owned by the International Olympic Committee) in a wide range of goods and services. Any unauthorised use of that logo, in addition to amounting to copyright infringement and trade mark infringement, would amount to a misleading or deceptive conduct (section 18 of the ACL) or misrepresentation that the person has a sponsorship, approval or affiliation with the International Olympic Committee or the Tokyo 2020 Olympic Games when they do not, in contravention of section 29(1)(g) of the ACL.
In Australia, the investment required to host major sporting events and public benefit from allowing event organisers to commercially benefit from association with their events is reflected in the Major Sporting Events (Indicia and Images) Protection Act 2015 (Cth).
Not surprisingly, given the amount of money paid by businesses to be associated with the Olympic Games, there are additional legal protections afforded to Olympic insignia. In Australia, intellectual property rights in Olympic insignia are protected by the Olympic Insignia Protection Act 1987 (Cth) (the Olympic Insignia Act).
The Olympic Insignia Act would apply to prevent any person in Australia from making unauthorised commercial use of a wide range of protected Olympic expressions during the Tokyo Olympic Games, including for example, the Olympic rings or the words ‘Gold’ ‘Silver’ ‘Bronze’ if used in association with the Olympic Games.
With Brisbane having been selected as the host city for the 2032 Olympic Games, it is only a matter of time before the Australian Government introduces specific legislation to further protect Olympic insignia leading into and during the Brisbane 2032 Olympic Games. Such legislation is likely to be based on legislation used for the Sydney 2000 Olympic Games, being the Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Cth) (the Olympic Host City Act).
Once a version of the Olympic Host City Act has been enacted, it will almost certainly prohibit the unauthorised use of any Olympic insignia for commercial purposes. Commercial purposes were defined in the Olympic Host City Act as being the application of indicia and images to goods or services for the purpose of advertising or promotion, if such would suggest to a reasonable person that the provider of the goods or services so marked was a sponsor of the Sydney 2000 Olympic Games or any event arranged by SOCOG, the Australian Olympic Committee or the International Olympic Committee.
What constitutes a commercial purpose is not always as simple as it seems. As part of its promotion as broadcast partner of the 2016 Rio Olympic Games, Telstra conducted a range of ‘I go to Rio’ themed advertisements. The Australian Olympic Committee sued Telstra in the Federal Court on the basis that the Telstra advertisements mislead or deceived the public into thinking Telstra was a sponsor of the Australian Olympic team. The Federal Court (and then the Full Federal Court, on appeal) dismissed the Australian Olympic Committee claims, finding that the relevant advertising in the way presented, conveyed an association between Telstra and the official broadcaster the Seven Network, and not an association between Telstra and the Australian Olympic Team. Of relevance to this case was the concluding message of the Telstra advertisements that made it clear that ‘Telstra is Seven’s broadcast partner’.
The Olympic Games bring out the best in athletes from around the world. It also brings out the best in marketing and advertising executives around the world.
Despite the existence of the Olympic Insignia Act and relevant Olympic Host City Acts, marketing, and advertising executives around the world work very closely with their lawyers to devise marketing strategies that ‘fly close to the line’ while avoiding contravening the relevant laws. These marketing and advertising campaigns are often referred to as ‘ambush marketing’.
The International Olympic Committee defines ambush marketing as ‘a planned attempt by a third party to associate directly or indirectly with the Olympic Games to gain the recognition and benefits with being an Olympic partner [without being an Olympic partner]…Ambush marketing is equated to cheating and causes damage to the Olympic Movement by devaluing the Olympic brand.’
Every Olympic Games, some clever ambush marketing activities are undertaken which avoid contravening ambush marketing laws such as the relevant Olympic Host City Acts. For example, Adidas was an official sponsor of the London 2012 Olympic Games. That did not prevent their competitor Nike from conducting an international advertising campaign during the London 2012 Olympic Games featuring athletes performing in other Londons such as London, Ohio, East London in South Africa, and Little London in Jamaica.
The organisers of the Brisbane 2032 Olympic Games will presumably be devising legal strategies to prevent similar ambush strategies with references to athletes performing in Brisbane California, Brisbane North Dakota, or Brisbane Illinois.
Sponsors of high profile individual Olympic athletes have been known to attempt to use those athletes to promote their goods/services even though the sponsor is not an official Olympic sponsor. For example, at the Atlanta 1996 Olympic Games, well known sprinter Linford Christie wore Puma contact lenses at a press conference. For Australian Olympians, such conduct would not be permitted during the Olympic Games pursuant to the Athlete Agreement between Australian Olympians and the Australian Olympic Committee.
Non-commercial use of Olympic insignia is generally permitted, for example, to factually refer to the Olympic Games or something that occurred at the Olympic Games.
What constitutes commercial v non-commercial use will of course depend on the facts. An individual posting a reference to a specific Olympic performance on social media would generally be acceptable, however a company making a similar post may be deemed as being an attempt to commercially associate with that athlete or the Olympic Games. Taking this one step further, the sponsors of an individual Olympian may wish to promote their sponsorship of that Olympian during the Olympic Games. However, this would not be permissible, with the athlete agreeing pursuant to their Athlete Agreement with the Australian Olympic Committee that they will not permit such conduct or promotion during a specified Olympic period.
Use of Olympic insignia in any way by a business during the conduct of the Olympic Games always carries some legal risk. Before undertaking any such use, it is always wise to obtain legal advice from an intellectual property lawyer or a lawyer familiar advertising laws and the Olympic Insignia Act.
The author of this article is an Olympian, who may refer to that fact without infringing the Olympic Insignia Act, since the term ‘Olympian’ is not a protected Olympic expression.
This memo presents an overview and commentary of the subject matter. It is not provided in the context of a solicitor-client relationship and no duty of care is assumed or accepted. It does not constitute legal advice.
© Moulis Legal 2021