Monday, May 12, 2014

Australia: Legislating against ambush marketing

A Bill that increases protection against ambush marketers, who try to get a free ride by piggybacking off major sporting events, is welcome news for event organisers and sponsors. The Major Sporting Events (Indicia and Images) Protection Bill 2014 was introduced into Federal Parliament on 26 March 2014. The legislation specifically protects next year’s AFC Asian Cup, the ICC Cricket World Cup 2015, and the 2018 Gold Coast Commonwealth Games.

This new event-specific ambush marketing legislation increases protection of the commercial rights and marketing efforts of event owners and sponsors by legislating against unauthorised commercial use of certain event indicia (text and other distinguishing marks) and images. This bolsters support currently provided to rights owners and their licensees by the Trade Marks Act 1995 and the Australian Consumer Law. The Major Sporting Events (Indicia and Images) Protection Bill 2014 follows on from the Olympic Insignia Protection Act 1987 and other event specific legislation created for the Australian Grand Prix, Sydney Olympics and Melbourne Commonwealth Games.

Ambush marketing

Local organising committees, who own events and the related event intellectual property and commercial rights, rely on sponsorship to provide essential revenue for staging events. Businesses that do not sponsor the events may seek to capitalise on the event by using event indicia or images in order to associate themselves (sometimes subtly) with the event.  This is known as ‘ambush marketing’.  

While ambush marketing may comprise advertising or marketing that is clearly misleading and would be unlawful under existing legislation, ambush marketers are often more savvy than this.  A business may seek to associate itself with an event but stop short of representing that it is an official sponsor; that is, it misappropriates for itself the benefit of the reputation (and feel good factor) of the event but does not misrepresent an association with it.  This in itself may not be in breach of the Australian Consumer Law, and it also may not involve the use of a registered trade mark associated with the event. 

Benefits to sponsors

The new ambush marketing legislation will provide an added level of comfort to official sponsors who believe existing legislative mechanisms are inadequate and do not prevent freeloading businesses diluting genuine sponsor marketing efforts.

As mentioned, consumer law does not cover all the issues. There are also certain types of event indicia – like common words, titles and short expressions – that are not covered by the Trade Marks Act 1995. This new legislation will prevent or minimise broader forms of ambush marketing by going beyond the normal prohibitions against trade mark infringement and misleading or deceptive conduct. 

The key features of the Bill include:

• Prevention of the unauthorised commercial use of protected indicia and images.

• Protection of the use of agreed words and phrases, and variants of event names and known abbreviations, associated with each event.

• The establishment of a registration process and the creation of an online register containing details about authorisations to use indicia and images for each event. 

• Provision of a range of remedies including injunctions, damages, corrective advertisement and the seizure of goods.

• Exceptions allowing for the continued operation of rights and liabilities under the Trade Marks Act 1995, Designs Act 2003, Copyright Act 1968 and the Competition and Consumer Act 2010 (Australian Consumer Law). 

The Bill contains a list of protected indicia that may only be used by authorised users (i.e. official sponsors) during specified periods of time around each sporting event.  For example, protected indicia for the ICC Cricket World Cup 2015 include the phrases, “Cricket World Cup” and “CWC 2015”. 

The Bill also contains two lists of expressions that are protected when a phrase from one list is combined with a phrase from the other list.  For example, one list contains phrases that are similar or identical to terms on the protected indicia table like “Cricket World Cup”, while the other list contains general terms like “caterer” and “merchandise”.

Event owners will have an expanded range of legal remedies to protect their intellectual property. This includes the ability to enforce their rights by threatening or taking legal action under event-specific legislation. This means improved security for sponsorship revenue, and a more attractive investment for sponsors.  This is good news for these upcoming world class sporting fixtures.  

 

David Yates Partner
Mark Hyde Associate
Corrs Chambers Westgarth, Perth
david.yates@corrs.com.au
mark.hyde@corrs.com.au

 

This article originally appeared on the Corrs Chambers Westgarth internet site. You can access the original by clicking here.

 

A search on World Sports Law Report’s internet site revealed 40 articles on ambush marketing. To sign up for a free trial to World Sports Law Report, click here.


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