On the heels of the
Commonwealth Games Arrangements (Brand Protection) Amendment Act 2013 (Cth) and the Queensland events protection regime noted
here the Australian Government has introduced the
Major Sporting Events (Indicia and Images) Protection Bill 2014 (Cth), intended to protect three major sporting events -
- Asian Football Confederation (AFC) Asian Cup 2015;
- International Cricket Council (ICC) Cricket World Cup 2015;
- Gold Coast 2018 Commonwealth Games.
The Bill is described as meant to
prevent the unauthorised commercial use of certain indicia and images associated with these events in the lead up, during, and immediately after the events; and
provide a more secure environment in which the relevant local organising committees can raise revenue through sponsorship and prevent ambush marketing.
The Regulation Impact Statement indicates that -
The Asian Football Confederation (AFC) Asian Cup 2015, the International Cricket Council (ICC) Cricket World Cup 2015 and the Gold Coast 2018 Commonwealth Games will be significant international sporting events to showcase Australia. As a condition of being awarded the right to host these events, the Australian Government provided written undertakings to protect the unauthorized commercial use of certain indicia and images associated with each of the Events, commensurate with the support provided to the Melbourne 2006 Commonwealth Games, and enact any required legislation by early 2014.
Traditionally event owners rely on sponsorship revenue to stage their events, reducing the reliance on government financial support. In return for their event sponsorship, sponsors can publicise their support by using event indicia and images. However, businesses that do not sponsor the events may seek to capitalise on the event by using event indicia or images, suggesting a sponsorship arrangement with the event. This is called ‘ambush marketing by association’.
Precedent for major sporting events legislation has been established by the Sydney 2000 Games (Indicia and Images) Protection Act 1996 and the Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2005. These were enacted to provide legislative protection to event owners for certain event insignia as existing legislative mechanisms were deemed inadequate to prevent incidents of obvious ambush marketing. Both these Acts have since been repealed.
Problem or Issue Identification
Event owners and the AFC Asian Cup Local Organising Committee, the ICC Cricket World Cup Local Organising Committee, and the Gold Coast 2018 Commonwealth Games Corporation have sought a commitment from the government to protect against the unauthorized use of certain indicia and images associated with the respective events to help them secure event sponsorship.
If sponsors do not have certainty that they are the only businesses that can directly benefit from association with the Events, they may withdraw their sponsorship or decide not to support the Events. A decrease in sponsorship revenue could increase the need for financial assistance from the Australian Government and/or state and territory governments to stage the events.
An analysis was undertaken by the Major Events Taskforce in the Office for Sport and relevant government agencies of the existing legislation and the commitments provided by the Australian Government. The analysis identified that:
- The existing Acts do not provide the level of protection committed to. In particular,
not all Event indicia can be trademarked as the Trade Mark Act 1995 and the Copyright Act 1968 do not extend to the protection of common words, titles and short expressions.
- Customs powers in the Trade Marks Act 1995 and the Copyright Act 1968 have been strengthened in the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 since Melbourne 2006 and these should be utilized in the major sporting events legislation to avoid confusion for business, consumers and those administering the measures.
- Limited legislation exists at the state/territory government level to support ambush marketing with no consistent approach.
The results of a review of the two previous major events legislation undertaken by Frontier Economics in 2007 noted that:
- the effectiveness of these Acts was due to their deterrence and signaling effects and the enhanced ability of the event organisers to enforce their rights by threatening to take action under the legislation thus limiting the number of breaches; and
- greater clarity regarding the existence and scope of property rights enhances competition.
