“When my customer smiles at me…I go to Rio”: Ambush Marketing and the Rio Olympics

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As Brazil prepares to host the 2016 Olympic and Paralympic Games in Rio de Janiero, the Brazilian Congress has been busy attempting to protect the valuable intellectual property surrounding the Rio Olympics by enacting specific legislation in an effort to curb ambush marketing attempts, and unlawful associations by brands, which inevitably occurs during large scale sporting events.Brazil_and_australia

As is our usual advice around this time, agencies and brands need to consider the legal risks of associating a brand with the Olympics where the brand is not an official sponsor or licensee, particularly given the level of investment by official Olympic sponsors to gain an exclusive category right of association with the Games. Using the Olympic brand is not only regulated by the usual legal protections such as the Australian Consumer Law, copyright, and trade mark law, but also by legislation specific to the Olympics generally, all of which needs to be considered if any degree of unofficial association is to be made.

1.       Specific Brazilian Olympics Legislation

Soon after Rio de Janiero was chosen to host the 2016 Games, Brazil enacted special legislation to protect additional symbols and expressions specific to the Rio Olympics in The Olympic Act (Law 12,035/09 of October 1, 2009). Under this legislation, Brazilian authorities are responsible for monitoring, investigating, and suppressing any unlawful acts that violate the rights in the Olympic symbols, which are defined as:

  1. all graphically distinctive signs, flags, mottos, emblems, and anthems used by the International Olympic Committee;
  2. the names “Olympic Games,” “Paralympic Games,” “Rio 2016 Olympic Games,” “Rio 2016 Paralympic Games,” “XXXI Olympic Games,” “Rio 2016,” “Rio Olympics,” “Rio 2016 Olympics,” “Rio Paralympics,” “Rio 2016 Paralympics” and other abbreviations and variations, and also those equally relevant that may be created for the same purposes, in any language, including those in connection with websites;
  3. the name, emblem, flag, anthem, motto, and trademarks and other symbols of the Rio 2016 Organizing Committee; and
  4. the mascots, trademarks, torches and other symbols in connection with the XXXI Olympic Games, Rio 2016 Olympic Games, and Rio 2016 Paralympic Games.

The legislation makes it clear that an unlawful act may include use of the above symbols even if the use is not for a commercial purpose. Furthermore, the legislation seeks to expressly curtail ambush marketing practices by prohibiting the use of expressions and symbols which are ‘sufficiently similar’ to the symbols listed above, to the extent that the sufficiently similar symbol is “able to invoke an undue association of any products and services whatsoever, or even any company, transaction or event with the Rio 2016 Games and Olympic Movement”.

It is unlikely that this Brazilian legislation will have an extraterritorial effect in Australia and therefore would not influence or restrict local Australian marketing campaigns.  However, following the Australian High Court’s decision in Dow Jones & Company Inc v Gutnick [2002] HCA 56, infringing materials conducted via the Internet or other digital technology have the possibility of attracting “global liability” whereby advertisers and brands may be subject to the laws of Australia, even if the infringing material is uploaded overseas. It is possible that the courts of Brazil would take a similar approach, given the global nature of the internet. Therefore, if an online or social media campaign is uploaded to the Internet by an Australian brand, and is able to be viewed or downloaded in Brazil, there is the possibility that legitimate rights holders may be able to take action in Brazil against an Australian campaign which allegedly infringes the Brazilian legislation, regardless of the fact that the campaign is not being conducted from Brazil or targeted at Brazilian nationals.

The mere fact that individuals in Brazil can view the material may be sufficient. Of course, the Brazilian authorities would need to attempt to enforce any judgment in Australia, which raises complex questions under International law and treaties, which is beyond the scope of this article. However, the risks remains.

Australian Position

In Australia, the Olympic Insignia Protection Act 1987 (Cth) regulates the commercial use of certain Olympic expressions. Any advertising or promotional campaigns where the brand featured is not a licensed user must steer clear of words such as “Olympics”, “Olympic Games”, and “Olympiads” (or any words closely resembling these) in order to avoid infringing the legislation. The Olympic motto “Faster, Higher, Stronger” and its five ring symbol are also protected under this act.

In addition, the Major Sporting Events (Indicia and Images) Protection Act 2015 (Cth) offers specific protection to the organisers and sponsors of major Australian Pacific sporting events, including the Asian Football Confederation (AFC) Asian Cup 2015, the International Cricket Council (ICC) Cricket World Cup 2015, and the Gold Coast 2018 Commonwealth Games. Whilst the explanatory memorandum of the Bill indicated that there was potential for the scope of the Bill to be widened to account for future major events, at this time, this act does not provide specific protections in relation to the Rio Olympics in an Australian context. As indicated below, there are still existing protections in Australian law which protect the commercial rights of Olympic organisers and official sponsors.

2.       Australian Consumer Law – misleading or deceptive conduct

Even if you do not use any Olympic and specific Rio Olympics insignia and symbols, the Australian Consumer Law prohibits the making of false representations of association, affiliation, endorsement, sponsorship or a similar relationship with the Rio Olympics where in fact no such relationship exists.

Pursuant to the Australian Consumer Law (embodied in Schedule 2 of the Competition and Consumer Act 2010 (Cth), any marketing activity that falsely or misleadingly suggests, or implies an association, sponsorship, or affiliation between a brand and an event may constitute misleading or deceptive conduct (section 18) and/or contain false or misleading representations (section 29).

However, the distinction must be made between, on the one hand, a marketing activity that indirectly implies an affiliation with an event, which may only lead a consumer to wonder about the association, or call to mind the Olympics and related sports generally, which may not give rise to a cause of action under the Australian Consumer Law, and on the other hand, a marketing activity that makes direct and misleading claims of association with an event, leading a consumer into error which may result in deception or a misrepresentation under the Australian Consumer Law.

Additionally, ambush marketing may be actionable under the common law action of passing off if it causes damage to the reputation or goodwill of an official sponsor or supplier to an event, or wrongful appropriation in the sense of causing potential customers to associate the product or business of an official sponsor or supplier with that of the marketed brand where no such connection exists.

For example, during the 2012 London Olympics, a TVC for Australian Mining featuring Olympic cyclist Anna Meares was pulled after the Australian Olympic Committee claimed it was in breach of advertising guidelines aimed at protecting official sponsors. The TVC showed Meares in cycling gear sporting sponsor BHP Billiton’s logo (who were a rival to official Australian team sponsor Rio Tinto) while she spoke about her Olympic hopes in London.

Generally speaking, if an advertisement for running shoes was created which was accompanied by the caption “Helping Athletes Win”, this would most likely not be considered sufficient to suggest an association with the Games in breach of the law. However, a promotional product bearing the colours of the Olympic rings as well as athletic imagery arguably raises consumer law concerns.

3.       Copyright and Trade Mark Infringement

The logos, fonts, and imagery utilised by the Rio Olympics are protected by a combination of copyright and trade mark registrations in addition to the legislation enacted in Brazil mentioned above. Reproducing a trade mark or logo, or adopting the official font in marketing material will likely amount to an infringement of these legal areas, and any use of the Olympic brand assets should be strictly avoided unless permission (likely by way of a license) has been obtained for the specific intended use.

Recommendations

Whilst Olympic fever is contagious, the side effects of unauthorised association are legally risky and potentially costly for both agencies and brands. Agencies should be prudent and cautious when deciding whether to conduct an Olympic-themed or associated campaign, and should avoid any use of the Olympic names and its highly valuable brand assets. It is important not to rely on the assumption that any use will go unnoticed, as the Olympic Committee and official sponsors keep a watchful eye on those seeking to ambush their event and to protect the investment.

It is useful to note that if an agency and brand are attempting to associate with the spirit of the Olympics whilst not crossing the legal line, each particular communication must be considered on its own merits having regard to the dominant impression of the communication or advertisement, the context, and the media on which it will be promoted or advertised, as this will have an effect on the legal outcome.

We recommend that any marketing campaigns that could involve any Olympic association, particularly ones which ‘sail close to the wind’ be subject to legal clearance.

Sweating over the legal side effects of Olympics fever

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Image courtesy of Matt McGee

With the London 2012 Olympic Games just over two months away it’s likely that Olympics fever will soon take hold across Australia. If you or your client catches a bout you should consider the legal risks of associating a brand with the Olympics where the brand is not an official sponsor or licensee, particularly given the level of investment by official London 2012 Olympic sponsors to gain an exclusive right of association with the Games. Using the Olympics brand is not only regulated by usual legal sources such as the Australian Consumer Law, copyright and trade mark but also by legislation specific to the Olympics, all of which you and your client need to acknowledge.

1.       Specific Olympics Legislation

The Olympic Insignia Protection Act 1987 regulates the commercial use of certain Olympic expressions. Any advertising or promotional campaigns where the brand featured is not a licensed user must steer clear of words such as “Olympics”, “Olympic Games” and “Olympiads” (or any words closely resembling these) in order to avoid infringing the legislation. The Olympic motto “Faster, Higher, Stronger” and its five ring symbol are also protected under the Act.

The UK has also enacted special legislation to protect additional expressions linked to the upcoming 2012 Games including:

“– any two of the words: Games, Two Thousand and Twelve, 2012, Twenty-Twelve

OR

– any word in the list above with one or more of the words: London, medals, sponsors, summer, gold, silver, bronze”

This means that even expressions such as “London Games” and “2012 Games” are protected from use by organisations without authorised consent from the Olympic Committee.

2.       Australian Consumer Law – misleading or deceptive conduct

Even if you do not use any Olympic insignia, the Australian Consumer Law prohibits the making of false representations of association, affiliation, endorsement, sponsorship or a similar relationship with the London Olympic Games where in fact no such relationship exists. The test when assessing misleading or deceptive conduct under the Australian Consumer Law is based on the overall impression made to the target audience and agencies should consider this test if developing an Olympic-themed campaign.

An example? An advertisement for running shoes which is accompanied by the caption “Helping Athletes Win” would arguably not be considered to suggest an association with the Games. However, a promotional product bearing the colours of the Olympic rings as well as athletic imagery arguably would be an issue.

 3.       Copyright and Trade Mark Infringement

The logos, fonts and imagery utilised by the London 2012 Olympic Games are protected by a combination of copyright and trade mark registrations. Reproducing a trade mark or logo, or adopting the official font in your marketing material will likely amount to an infringement of these legal areas, and any use of the Olympic brand assets should be strictly avoided unless permission has been obtained for your specific intended use.

Watch out!

Whilst Olympic fever is contagious, the side effects of unauthorised association are legally risky and potentially costly for you and your clients. You should be prudent and cautious when deciding whether to conduct an Olympic-themed campaign and should avoid any use of the Olympic names and its highly valuable brand assets. Make sure not to rely on the assumption that your use will go unnoticed as the Olympic Committee keeps a watchful eye on those seeking to ambush their event and to protect the investment of their official sponsors.

We recommend that any marketing campaigns that could involve any Olympic association be subject to legal clearance, so feel free to contact us if we can assist.

ACCC EYES ADLAND

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Last month our consumer and competition watchdog, the ACCC, put the advertising industry on notice that it will be more aggressive in pursuing misleading ads.

In her speech at the Australian Association of National Advertisers Annual Congress (for a full copy, go here), ACCC commissioner Sarah Court flagged three big ticket items:

  • fine print qualifications and disclaimers;
  • credence claims; and
  • the use of testimonials.

Here is a quick overview of the watch-outs:

OPTUS THINK NOW AD

Fine print disclaimers. Here the concern is where disclaimers in fine-print are used to qualify large headlines, particularly where the product or service being advertised is complex or detailed. The Optus ‘Think Bigger’ campaign in 2010 (see image) got into hot water for this very issue. Customers were told that when they signed up to a ‘Think Bigger’ plan, their data usage would consist of a specific peak and off-peak allowance. The Federal Court found that the short small-print disclaimer: ‘Speed limited once peak data exceeded’, did not give customers an accurate description of how the plan actually operated, that is, that once a customer exhausted their peak allowance, their service would be curbed to a humble 64kpbs, during peak and off-peak usage. The court fined Optus $5.26 million in the highest pecuniary penalty imposed so far under the Australian Consumer Law. Optus is now appealing the penalty.

Credence claims. Credence or credibility claims can offer a competitive advantage and are powerful in influencing consumer choices, but the ACCC has warned against making false or exaggerated claims in this regard, cracking down on the advertising strategy of late, particularly in relation to claims of origin or product description in relation to food. Last year the ACCC took action against a poultry company which claimed their chickens were “free to roam” in in-store displays and on delivery trucks. The ACCC successfully argued that this was misleading, given that the chickens were in fact reared indoors and restricted in their ability to roam.

Use of testimonials. Testimonials, like credence claims, are used to gain consumer trust, and as a result, must always be accurate and truthful. In 2008, Coca-Cola published an ad featuring Kerry Armstrong “busting” myths that the drink made people fat, rotted teeth and was packed with caffeine. After negotiations with the ACCC, the soft drink giant published corrective ads to qualify the sweeping claims made.

 How to avoid moving into the spotlight for all the wrong reasons:

  • Make sure you consider the overall impression of the ad to consumers and watch out for headlines that require qualification by way of disclaimer.
  • Ensure you maintain all records of information that can be used to substantiate any claims you make about a product/service in your ads.
  • Where unsure, always seek legal advice, as the eyes of your consumers may not be the only ones watching…