With the 2016 Rio Olympic Games underway, many have been caught up in the hype and excitement of the world’s biggest sporting event. However, Telstra’s Olympic fever landed them in Federal Court with the Australian Olympic Committee (‘AOC’), which alleged Telstra had engaged in ambush marketing in its recent ‘Go To Rio’ campaign and associated promotions.
The dispute centred largely around one television advertisement which featured the protected expressions ‘Olympics’ and ‘Olympic Games’, describing the telco as the “official technology partner of Seven’s Olympic Games coverage”, and was generally themed around the upcoming Games. After the AOC initially expressed concern, Telstra amended the advertisement to include a text disclaimer that they were not an “official Olympic sponsor”. Despite this, the AOC still sought to stop the campaign from running, contending that it contravened section 36 of the Olympic Insignia Protection Act 1987 (Cth) (‘the Act’) which protects the commercial use of Olympic properties, and also amounted to misleading and deceptive conduct, or conveyed a false misleading representation, under section 18 and section 29 respectively of the Australian Consumer Law (‘ACL’).
The court ultimately found that Telstra’s campaign merely demonstrated their sponsorship arrangement with Seven, who is the official broadcaster for the 2016 Rio Olympic Games, and was not in contravention of the Act or the Australian Consumer Law.
The Olympic Insignia Protection Claim
Under section 36 of the Act, in order to use protected Olympic expressions for commercial purposes, a licence must be granted from the AOC. There was no question that Telstra had in fact applied protected Olympic expressions without a valid licence; the crux of the dispute was whether Telstra’s promotions and advertisements amounted to commercial use. Under section 30 of the Act, commercial use would be made out if Telstra’s advertisements and related promotions would suggest to a reasonable person that Telstra was a sponsor of, or provided sponsorship-like support, to bodies or individuals associated with the Rio Olympic Games.
Relevantly, when considering Telstra’s television advertisement, the court took into account that while the Olympic Games provided the underlying theme or story of the advertisement, the advertisement itself made no express mention or reference to the International Olympic Committee (‘IOC’), the AOC or any Australian Olympic athletes, let alone express reference to a sponsorship arrangement between Telstra and any of these bodies. It was also relevant to the court’s decision that the advertisement did not feature other protected assets such as the five ring symbol or the torch.
Ultimately, the court determined the critical question was whether the advertisement made it sufficiently clear that Telstra’s sponsorship-like arrangement was with Seven, and not any Olympic body. The court decided that while the original advertisement was “borderline”, on the balance of probabilities, the revised advertisement did not “cross the line” to suggest to a reasonable person that Telstra was a sponsor of the Olympics or any Olympic body, but rather sufficiently conveyed the commercial arrangement between Telstra and Seven.
Australian Consumer Law Claim
In regards to the AOC’s claim for a false or misleading representation, and misleading and deceptive conduct, the court considered firstly that the viewership of the television advertisement was likely to be “very broad and wide-ranging” and the advertisement itself was inherently transient in nature. Furthermore, it was likely that the viewer would only take in the main message or theme of the advertisement, observing it casually and subject to distraction.
Secondly, the court found the key question for determining whether Telstra’s marketing efforts amounted to a false or misleading representation was whether they conveyed, or were likely to convey, to a reasonable person that Telstra had some form of sponsorship, licencing or affiliation arrangement with an Olympic body or the Olympic Games. While this test was similar to the Olympic Insignia Protection Claim, the court stated that the ACL claim was more concerned with the “overall impression” conveyed by the ‘Go To Rio’ campaign.
The court found that it was unlikely a reasonable person would regard Telstra as directly affiliated with any Olympic body or the Rio Olympic Games, and thus Telstra’s campaign did not convey a false or misleading representation. Furthermore, the court held that the AOC failed to demonstrate to the requisite standard that Telstra’s conduct was misleading or deceptive.
Overall, the court considered that it would be unwarranted to prevent Telstra from promoting its arrangement with Seven and it would be difficult to promote it without using the protected expressions or by making reference to the Olympic Games. Ultimately, the court found that while there was no doubt that Telstra intended to capitalise on the forthcoming Rio Olympic Games and foster some sort of connection, it had done so by effectively promoting its sponsorship arrangement with Seven in relation to Seven’s Olympic broadcast, rather than with an Olympic related body or with the Olympic Games directly.
Given neither of the AOC’s claims were made out, the application was dismissed with costs.
Lessons learned for marketers
This ruling provides some valuable guidance for marketers who want to leverage Olympic assets. While Telstra’s campaign has been allowed to run, this is not to say marketers can blindly use protected expressions. Telstra was in a unique position due to its commercial arrangement with Seven and therefore had valid reason to be using protected Olympic expressions in order to promote that relationship.
Ultimately, marketers must ensure they do not “cross the line” by creating advertisements that suggest to a reasonable person a sponsorship arrangement or sponsorship-like support of the games, any Olympic related bodies or its members, if such an arrangement does not exist. Whilst the court has established that this test is not to be “over-intellectualised”, brands “walk a fine line” when employing Olympic assets and caution should be exercised.