Ambush marketing laws reviewed

IP Australia and the Australian Department of Communications, Information Technology and the Arts are conducting a review of Chapter 3 of the Olympic Insignia Protection Act 1987 (OIP Act) and the Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2005 (M2006 Act). The aim of the review is to provide information and advice to the Australian government about the effectiveness of the OIP Act and the M2006 Act, and their impact on various stakeholders.

The OIP Act regulates the commercial use of certain Olympic designations for advertising or promotional purposes where such use would suggest a sponsorship (or sponsorship-like) association with Olympic bodies, athletes, teams and events.

The stated objects of the OIP Act are to:

• provide a high level of certainty about the scope of the Australian Olympic Committee's (AOC) rights;
  
  
• give AOC sponsors greater assurance that their arrangements will not be the subject of ambush marketing activities;
  
  
• protect the interests of third parties that are involved in the Olympic movement (eg, athletes, coaches, service providers); and
  
  
• regulate the authorized use of protected Olympic designations (for instance in media reporting), and to permit the use of non-protected Olympic-related designations.

The M2006 Act was enacted to provide protection for M2006 designations in connection with the Melbourne Commonwealth Games. The aims and structure of the M2006 Act closely followed the protection afforded under the OIP Act.

The review is interested in stakeholders' views and pertinent evidence as to the:

• effectiveness of the OIP Act and the M2006 Act in achieving their stated objectives; and
  
  
• the impact of the two acts (collectively referred to as the AML - Ambush Marketing Legislation) on various parties.

The analysis of the impact of the AML may well be influenced by views on what constitutes legitimate ambush marketing and those activities that should be prohibited. Furthermore, in assessing the effectiveness and impact of the AML, one needs to bear in mind existing protections afforded under the Trademarks Act 1995, the Trade Practices Act 1974, the Copyright Act 1968, passing off and the law of contract.

A variety of definitions of 'ambush marketing' have been adopted, many of which include activities sometimes viewed as legitimate marketing practices, and which do not involve any express misrepresentations as to sponsorship. Thus, stakeholders have been asked to comment in relation to a number of threshold issues:

• What activities are considered to constitute ambush marketing?
  
  
• In what circumstances are these activities a problem?
  
  
• Who is affected by this problem?
  
  
• How has ambush marketing impacted on you or your organization?
  
  
• Is the general law sufficient to deal with the problem? Why or why not?

The review will seek to assess and comment on:

• How well the AML targeted the perceived public detriment by establishing broader and more certain rights than under the general law;
  
  
• How well the AML minimized, or reduced the impact of, certain forms of ambush marketing;
  
  
• How and to what extent the AML facilitated the raising of revenue, over and above general laws in relation to intellectual property and marketing;
  
  
• Whether the AML strikes a fair balance between the interests of event organizers and those of other stakeholders, such as athletes, coaches, service providers and media organizations; and
  
  
• Whether the AML had any indirect, unintended or detrimental effects on certain organizations.

Interested parties wishing to comment must lodge their submissions by 5pm on Friday 13 April 2007 to [email protected]

Julian Gyngell, Julian Gyngell, Wahroonga