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
– 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.
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.
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:
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…