Curthoys, Jeremy; Kendall, Christopher N --- "Ambush Marketing and the Sydney 2000 Games (Indicia and Images) Protection Act: A Retrospective" [2001] MurdochUeJlLaw 10; (2001) 8(2) Murdoch University Electronic Journal of Law

The authors would like to thank Bruce Leishman for his research thoughout the earlier version of this paper, parts of which appeared in (2000) 11 AIPJ 5-22. Thank you also to Darren Spalding for his invaluable computer and editing skills during the production of this paper.

Introduction: Protecting the Sponsors

People think ambush marketing hurts the Olympics? Good! Who cares? Are the Olympics going to disappear from the planet? I don't think so. This isn't religion or virginity here, it's business. Marketing is a form of warfare, and the ambush is a helluva weapon...[1],

The success of an Olympic Games for a host city is determined not only by the sporting success of the event but also by its impact on the economic health of the city. Income for the Games is primarily generated from corporate sponsorship, the sale of television rights and ticket sales.[2] It is critical, therefore, that all sources of revenue be maximised. Failing to do so can result in financial disaster for any city charged with hosting the world's most significant sporting event.

In September 2000, Sydney Australia was host to what, for many, represents the world's premier sporting event. While it is undoubtedly the case that most Australians were keen to make certain the success of the Sydney Games, those charged with ensuring the financial success of the event were particularly determined to protect those corporate sponsors whose financial backing can make or break an event of this magnitude.

The benefits of being seen as an Olympics supporter and sponsor are enormous. Indeed, "the main attraction of the Olympics is that they provide a unique environment for global brands. They are seen to combine global interest with universal goodwill. According to Sponsorship Research International, the Olympic rings are the most recognised symbol in the world. In a survey spanning three continents, 81% of respondents said they associated the rings with success and high standards. Sixty per cent even felt the rings symbolise a force for world peace." [3] Jay Kim of the Samsung Olympic Project agrees, noting that "no other movement has the ability to capture the spirit of competition yet contribute to world peace at the same time."[4] Similarly, the International Olympic Committee (IOC) has been keen to promote the non-competitive aspects of the Olympic Games with a series of advertisements that feature the slogan "Celebrate Humanity." An example appears below.

For the 1996 Summer Olympics in Atlanta, 33 worldwide and US sponsors paid more than $40 million each for the rights attached to official sponsorship.[5] The Sydney Olympics attracted $700 million in sponsorship revenue.[6] Ansett Australia was the official airline of the Sydney 2000 Olympic Games. Westpac Bank was also an official partner of the Games. Although the specific amounts paid for these sponsorships have not been disclosed it is clear that both these organisations paid a considerable amount of money for the right to be recognised as official sponsors. As an official sponsor, Ansett needed to spend almost three times the amount it had already spent on sponsorship in order to get any real value out of its investment.

Those who pay to be the official sponsors of the Games expect and often receive considerable financial benefit from the recognition attached to being an Olympic sponsor. Not surprisingly then, Olympic sponsorship attracts some of the biggest and best known brands in the world.

IOC Pre-Olympic Advertisement, identifying official corporate sponsors

As an official sponsor, these companies also expect exclusivity and organisers are adamant that it be both granted and preserved for fear of losing sponsorship dollars. As Michael Payne explains, "in return for their sponsorship investments, corporations gain exclusive legal access to the public profile and positive values associated with the Olympic Games. Without this exclusivity and prestige, the value of the sponsorship is inevitably diminished."[7]

Shown below are some examples of advertising featuring Olympic athletes, appearing in Time magazine, dated August 5 1996. They show the attraction of sport and athletes as a marketing tool:

Carl Lewis, promoting Pirelli tires (1996)

Cathy Freeman, promoting Australia Post

Athletes and the Olympics are newsworthy in their own right as the following magazine covers illustrate. They become more newsworthy and more attractive to advertisers in the lead up to and during major sporting events such as the Olympics.

Australia was awarded the 2000 Olympic Games in September 1993. Shortly thereafter, in an effort to ensure that the position of sponsors was protected, the Australian Senate Legal and Constitutional References Committee conducted an inquiry into the protection of Olympic Insignia and sponsorship for the Sydney 2000 Games. The Host City Agreement with the IOC, signed in 1993, to which Australia was a party, required Australia to put in place a certain level of legal protection for the intellectual property and marketing activities of the IOC and the Olympic Games Organising Committee.[8] One of the Committee's principal concerns was that official corporate sponsors should be protected from what is now known as "ambush marketing", defined roughly as "a company's intentional efforts to weaken - or ambush - its competitor's "official" sponsorship by engaging in promotions and advertising that trade off the event or property's goodwill while seeking to confuse the buying public as to which company really holds official sponsorship rights."[9]

As a result of the Committee's final report, released in March 1995,[10] the Sydney 2000 Games (Indicia and Images) Protection Act 1996 was enacted.[11] The Committee intended that the Sydney 2000 Act build on and supplement existing intellectual property rights in the area of copyright, trade mark design, passing-off and trade practices law generally. The specific purpose of the Act was to facilitate the raising of revenue in relation to the Sydney 2000 Games through the regulation of the use for commercial purposes of the indicia and images associated with the Games.

The question this paper poses is whether or not the Sydney 2000 Act achieved its purpose and whether or not any legislation of this sort can ever prevent corporations engaging in what is called ambush marketing?[12] Did the Australian legislation successfully supplement existing intellectual property rights? More importantly, can legislation of this sort ever achieve anything in relation to ambush marketing?

This paper will commence with a brief analysis of some alleged examples of ambush marketing and its effects on markets and sponsors. Focussing on the marketing strategies of corporate sponsors leading up to the Sydney 2000 Games, it will then analyse the law as it stood prior to the passing of the Sydney 2000 Act. It will briefly discuss the problems identified by the Senate Committee and will detail its final recommendations. This will be followed by an overview of some of the advertising strategies being employed by non-sponsors in the lead up to and during the 2000 Games following the passing of the Act. Ultimately, we will conclude that the Sydney 2000 Act largely failed to achieve its purpose. Advertising which some official sponsors might classify as ambush marketing was not prevented. For others, this advertising was simply smart marketing. The question we pose is, could and should legislation aimed at maximizing the revenue for Games organisers by seeking to protect official sponsors limit the legitimate marketing activities of non-sponsors?

Ambush Marketing: What Is It? Why Does it Matter?

Ambush marketing, sometimes referred to as parasitic marketing, has been broadly defined as "the unauthorised association of a business or organisation with the marketing of a particular event - gaining benefit for the marketing right or licensing fee applicable in order to be associated with an event, such as a sporting event."[13] Ambush marketing is very much a part of today's corporate sponsorship climate and very much a feature of the Olympic landscape. As Michael Payne of the IOC explains:

Whether the association is unwilling or deliberately crafted to stay within the letter, if not the spirit of the law, parasite marketing has become an irritating fact of life for sports organisations that seek to protect the integrity of the sponsorship programs upon which many of these organisations depend. No organisation is more directly affected by the trend than Olympic Games organisers, who are striving to protect the rights of official Olympic sponsors against parasite marketers who seek to leverage the goodwill and worldwide reputation of the Olympic Movement at the expense of official sponsors.[14]

Sports lawyer Stephen Townley explains that ambush marketing can be divided into two broad classes of activity:

1. Activities traditionally considered piracies - these will usually have a clear-cut remedy in law. They are activities that clearly constitute infringements of the property rights in an event, for example, unauthorised use of a registered event logo on merchandise, or false claims to be official suppliers of a particular team.[15]

2. Other activities - more subtle practices for which the remedy is less clear-cut or may not even exist.[16]

For the purposes of this article, it is the latter that is of most concern. Tony Meenaghan, who has probably written more on ambush marketing than anyone else, notes that "ambushers" are becoming increasingly astute at developing ways to circumvent legal attempts to control non-sponsor marketing strategies. Elaborating on the second category noted above, Meenaghan explains that several methods of ambush marketing can be identified if one accepts the broadest meaning of the term:

1. Sponsor the Broadcast of the Event. Here the so-called "ambusher" sponsors the broadcast of the event. The benefits of this approach are obvious when one considers that the media audience for most events is much larger than the on-site audience. In such an instance the so-called "ambusher" is seeking a perfectly legitimate sponsorship opportunity in its own right.[17]

2. Sponsor Subcategories within the Event and Exploit this Investment Aggressively. This is a widespread and often very cost-effective method of association with an event of major public interest. Essentially, the "ambusher" sponsors some lesser element attached to the overall event and exploits this association through major promotional effort. In the case of the Olympic Games, while the official worldwide sponsor is sponsoring a particular top category at a price of $20 to $25 million, the so-called "ambusher" sponsors some lesser category such as a federation or team (such as the British swimming team).

3. Purchasing Advertising Time around Relays of the Competitor's Event. A company wishing to deny a competitor the full benefits of their event or broadcast sponsorship can engage in ambush marketing by buying advertising time in the slots around television relays of the event.[18]

4. Engage in Major Non-sponsorship Promotions to Coincide with the Event.[19]

5. Other Ambushing Strategies. In addition to the above list of strategies, many "ambushers" have adopted highly creative and inventive strategies to suggest their involvement with major global events.[20]

Often, "ambushers" will rely on a number of these methods at the same time, with clever and highly effective results. Indeed, a cursory review of international newspaper coverage of major global sporting events during the last eight years reveals that the strategies used are numerous. At the 1994 Winter Olympics, for example, American Express, which had been replaced as an official sponsor by Visa, marketed itself worldwide with the motto: "If you're travelling to Lillehammer, you'll need a passport, but you don't need a Visa." [21] Other examples abound.[22]

Survey results indicate that strategies of this sort are highly effective. One research group asked consumers less than a month after the 1996 Atlanta Olympics to name a half-dozen companies associated with the Games.[23] Some 54% of respondents named American Express. 72% named Visa. While to the viewing public, Visa might seem to have won this battle for media supremacy, the victory seems less impressive once it is noted that American Express didn't spend $40 million for the privilege of being associated with the Games. Visa did.[24] These results are similar to those unveiled in a survey conducted after the 1994 Winter Games, in which 52% of respondents inferred that American Express had an association with the Games. Again, American Express had not sponsored the Games.[25]

Not surprisingly, the organisers of major sporting events have all expressed concern that competition of this sort will diminish their ability to retain top paying sponsors, thus jeopardising their ability to fund these events. To some extent, recent events would seem to support their concerns, although it remains unclear if ambush marketing is in fact having as much of a negative impact on sponsor investment as critics would have us believe. Shortly after the 1998 World Cup, for example, Adidas announced that it would delay a decision on whether to remain an official sponsor after 2002 unless it could be assured that its investment dollar would be better protected.[26] It is clear then, at least in the eyes of those who sponsor major sporting events like the Olympic Games, that ambush marketing strategies are more than just a merely irritating, they represent a substantial threat to economic interests.

The Law Prior to the Sydney 2000 Act

Recall that sports lawyer Stephen Townley has divided ambush marketing into two main activities: those practices traditionally considered piracies and more subtle practices. Prior to the introduction of the Sydney 2000 Act the Australian legislation that primarily covered the first class of activities was the Olympic Insignia Protection Act 1987 (Cth). As Orr explains, this legislation remains intact (now supplemented by the Olympic Insignia Protection Amendment Act (1994)) and is relied upon for the protection of certain core Olympic symbols such as "the torch and flame artworks that are generated for each Olympic Games; the enduring Olympic ring symbol; and any designs based on these and registered under the Act." [27]

The Olympic Insignia Protection Act 1987 (Cth) provides that the Olympic symbol, that is, the 5 rings, is an original artistic work in which copyright subsists.[28] Copyright in the Olympic symbol subsists indefinitely.[29] The Australian Olympic Committee Incorporated (AOC) is the owner of the copyright in the Olympic symbol.[30] It further provides that the AOC is the owner of the design of the Olympic symbol and of a registered Olympic design under the Act.[31] The Act provides for protection periods of 12 years for a registered Olympic design and a period commencing no more than 4 years before the opening of an Olympic games and concluding on 31 December next after the closing of that Olympic games for a registered torch and flame design for a particular summer or winter Olympic games. Infringement occurs when these designs are used without the authority of the AOC during the protection period.[32] Examples of the type of designs protected by this Act are featured below:

Actions for infringement under the Olympic Insignia Protection Act are relatively easy because the item or logo which is alleged to infringe can be compared against the Olympic symbol or the protected design. This paper concentrates on the latter, more subtle type of "other activities".

In Australia, prior to the Sydney 2000 Act, the primary legislation charged with preventing ambush marketing via "other activities" was the Trade Practices Act. Section 52 of the Act provides that:

A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

Sub-sections 53(c) and (d) of the Act provide as follows:

A corporation shall not, in trade or commerce, in connexion [sic] with the supply or possible supply of goods or services or in connexion [sic] with the promotion by any means of the supply or use of goods or services:
(c) represent that goods and services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;
(d) represent that the corporation has a sponsorship, approval or affiliation it does not have.

To date, there have been few reported cases dealing specifically with ambush marketing. One which has, however, is the Canadian case of National Hockey League et al v Pepsi Cola Ltd.[33] Although the case deals with a passing off claim, and not a statutory provision similar to the Trade Practices Act, it does indicate just how far competitors are able to go before the courts see fit to view their actions as misleading and deceptive - hence deserving of legal penalty. It thus merits some consideration when determining how best to deal with the problem. Although the case is Canadian, the legal principles relating to passing off in Canada are substantially the same as those in Australia.

NHL v Pepsi concerned an action for passing off between the National Hockey League (NHL) and Pepsi Cola. At that time, the NHL consisted of 21 ice hockey clubs. It had an affiliated services company, the National Hockey League Services Ltd (NHLS). Apart from ticket sales and the sale of broadcast rights, an important source of revenue for the NHL comes from the sale by NHLS of licences to the producers of a variety of products to display the league's registered trade marks on or in conjunction with their products and to claim affiliation in one way or another with the NHL and its member teams. The NHL's registered marks include its name, a logo emblazoned with its initials, the names and logos (when used collectively) of its member teams, and the words "Stanley Cup". The names and logos of the member teams of the NHL are also registered.[34]

NHLS agreed with Coca Cola Ltd that its product would be designated the official soft drink of the NHL. In consideration of the rights it attained under the agreement, Coca Cola agreed to pay the NHLS approximately $2.6 million.[35] This agreement did not, however, give Coca Cola the right to advertise during broadcasts of NHL games. The NHL gave this right to Molson Breweries.[36] The Canadian Broadcasting Corporation (CBC) broadcasts at least one NHL game nation-wide in Canada every Saturday night during the regular playing season. It also broadcasts many of the post-season playoff games, as well as all the Stanley Cup playoff games. These broadcasts have become known as "Hockey Night in Canada" (HNIC). Molson granted Pepsi-Cola, Coke's main competitor, the right to advertise Pepsi's soft drinks during broadcasts. Pepsi-Cola advertised its product by means of a contest called "the Diet Pepsi four million dollar pro-hockey playoff pool." The case at trial arose primarily out of Pepsi's advertising campaign and the promotional material related to that campaign (the "Contest").[37]

As part of its HNIC advertising, Pepsi sponsored a program called "Coach's Corner", which was televised during the Stanley-Cup playoff games, at half-time. This program featured well-known sports celebrity Don Cherry being interviewed by a CBC sports commentator.[38] Don Cherry is well known throughout Canada and is viewed by many as the voice of the NHL. Indeed, it is perhaps somewhat of an understatement to say that when people see him, they also see the NHL. To promote its Contest and, thereby the sale of its products beyond that which was possible by point-of-sale advertising, Pepsi advertised the Contest on television during the broadcast of the Stanley Cup playoff series.[39] The advertisements, shown nationwide, were in the English language and featured Don Cherry playing himself. The advertisements were set in a hockey dressing-room with Cherry explaining the Contest to three men dressed as hockey players. In one of the television advertisements, the audio portion consisted of a monologue by Cherry in which he stated:

Just cool it! Just cool it! There's $4 million to be won in Diet Pepsi's Playoff Pool.

Now look here! Check under the caps of Pepsi and 7-Up products! If, for instance, it says "Calgary in 6" and they win the Playoff finals in 6 you could win $10,000, $10.00 or free Diet Pepsi. Now, hit the ice you guys! Play Diet Pepsi's $4 million Playoff Pool.

Can you believe these guys?[40]

At trial, the position taken by the NHL, as plaintiffs, was that the Contest and particularly the television advertisements featuring Don Cherry, were "likely to convey to the public a false impression that the NHL and its member teams approved, authorised, endorsed or were in some manner associated with the Contest, and thereby, Pepsi's products."[41]

In making its claim, the NHL pointed to the fact that the various cities and states named on the bottle cap liners and other game pieces used for the Contest could only be seen to refer to the NHL teams based in those cities or states and that the phrase "Pro-Hockey Playoff" could only have been intended to be a reference to the Stanley Cup Playoff Series. In sum, the NHL contended that Pepsi was guilty of the tort of passing off because the television commercials in particular "conveyed a false impression to the public that the NHL, in some form, approved or was associated with the contest."[42] Pepsi, in response, argued that its actions constituted little more than "an aggressive but legitimate marketing campaign."[43]

In examining the tort of passing off the Court held that:

...nowadays, perhaps (the) more common type of passing-off, is where it is alleged that a defendant has promoted his product or business in such a way as to create the false impression that his product or business is in some way approved, authorised or endorsed by the plaintiff or that there is some business connection between the defendant and the plaintiff. By these means a defendant may hope to "cash in" on the goodwill of the plaintiff.[44]

The Court continued:

However, not every kind of connection claimed amounts to a passing-off. There must be a representation that the defendant's goods are connected with the plaintiff in such a way as would lead people to accept them on the faith of the plaintiff's reputation: see H.P. Bulmer Ltd v J Bollinger S.A., [1978] R.P.C. 79 (C.A.). The question here is whether the advertising went beyond that which was legitimate and misrepresented to the public that one or more of the plaintiffs approved, authorised or endorsed the Contest, and thereby, by implication, the defendant's products, or that there was some business connection between the plaintiffs and the defendant.[45]

In deciding the issue, the Court relied on the House of Lord's decision in General Electric Co Ltd v General Electric Co.[46] in which it was held, on the issue of the likelihood of the public being deceived, that the tribunal of fact must not only consider the evidence but also use its own common sense. Applying this test, the Court found that although Pepsi's actions did clearly constitute ambush marketing[47] there was nothing in law that could be done to protect either Coke or the NHL in its endeavours to protect Coke from its main competitor:

Having viewed the television advertisements several times and read the printed material relating to the Contest, I am unable to say that the Contest suggests, to my mind, that the plaintiffs approved, authorised or endorsed the Contest in any way or that there was some form of business connection between the defendant and the plaintiffs. I recognize that my own perception may very well have been influenced by the trial itself. Accordingly, I attach little weight to it. The result, however, is that in respect of the Contest, there is neither evidence nor the appearance of passing-off.[48]

To date, NHL v Pepsi is one of only a few judicial decisions in which a court of law has dealt specifically with a claim of ambush marketing. Although the case is Canadian, and hence not necessarily binding in Australia, it does send a clear message to those wanting to undertake tactics similar to those used by Pepsi. As Davis notes, the case also demonstrates just how reluctant the courts can be to find a violation of existing law unless there has been a clear "trademark and tradename infringement" and this infringement is part of the overall marketing campaign.[49]

As will be discussed later in this paper, some Olympic sponsors have expressed concern with the use of past and future Olympic athletes by non-sponsors in their marketing campaigns - the concern being that the mere use of known athletes will lead to an assumption on the part of public that those using them are in fact official sponsors. Although no Australian cases to date have yet addressed the issue of ambush marketing per se, some have examined the use of athletes within the context of the Trade Practices Act. The success of much ambush marketing depends on the suggestion or implication of sponsorship. Because athletes often tend to represent or be the Olympic ideal, it is understandable that some might assume Olympic sponsorship from those who use Olympic athletes in their advertising campaigns.

In Honey v Australian Airlines Ltd,[50] Gary Honey brought an action against Australian Airlines based on sections 52 and 53 of the Trade Practices Act. Honey was a well known Commonwealth and Olympic long jumper, having won numerous international medals, including a gold medal at the 1986 Commonwealth Games. For many years, Australian airlines had produced posters for the purpose, it claimed, of "promoting and encouraging sport within Australia." Normally, these posters depicted sporting figures.[51] In 1987, Australian Airlines produced a series of three posters based on the 1986 Commonwealth Games. These three posters formed part of 18 posters distributed by the airline that year. Two of the Games posters depicted the women's 4 x 100 track relay team, with one other showing a pursuit cycling team.[52] The third poster was based on a photograph of Gary Honey. The photograph depicted Honey wearing material promoting Adidas and Guinness, two of the official sponsors of the Games. On the bottom right hand side of the poster in small print were the words:

(Mock up of the original poster)[53]

At trial, Gary Honey argued that the conduct of Australian Airlines, in publishing and distributing the poster, constituted false representations as to affiliation and sponsorship of the kind prohibited by the Trade Practices Act. Specifically, he argued that Australian Airlines had misrepresented their relationship with him such that there would have been created in the minds of those who viewed the poster an inference that he was endorsing the airline and its activities and, arguably, vice versa, with the full consent of all parties.

The Court did not accept Honey's claim, finding that Honey had not succeeded in proving that a significant segment of persons seeing the poster would be likely to associate him with Australian Airlines:

On a true analysis, the poster should be described as promoting excellence in sport. The poster itself does not constitute a representation that Australian Airlines was connected with the appellant, that it was permitted or licensed by the applicant in respect of the applicant's name and photograph, that its services were sponsored or approved by the applicant or that it was sponsored by, or approved by or affiliated with the applicant. The poster does not even give rise to a state of wonder as to whether there is any connection between Australian Airlines and the applicant. It is seen as an artwork supporting participation and excellence in sport and nothing more.[54]

On appeal, the Full Court of the Federal Court of Australia agreed, holding that for the purposes of the Trade Practices Act, the question of whether the poster distributed by Australian Airlines could be fairly said to have conveyed the representations alleged by Honey to a significant section of those who viewed them, must be answered by an objective assessment of the overall impression which they would make upon those viewers. Having done so, the Court continued:

There was nothing on the poster apart from the name and "logo" of the first respondent to suggest a commercial association or connection between the appellant and that organisation. The name and "logo" were not in a prominent position on the poster - the focus of the viewer's attention would clearly have been the photograph itself. There was no express assertion that the appellant endorsed the first respondent or its operations or activities.

We are satisfied that viewers of the poster would have perceived it not as an advertisement or promotion of the services being offered by the Respondent, but rather as a promotion by the airline of sport. It is not, however, inconsistent, with that conclusion to say that many, if not most, viewers would have assumed that the respondent had undertaken the task of producing posters of the kind exemplified by the one here in question because it perceived that such activity would enhance its public image and so generate benefits to its commercial operations. But that is quite a different thing from saying that by publication of the poster the respondent was representing that the appellant had approved the use of his photograph and endorsed the activities of the respondent.[55]

The Honey case makes it clear that if the conduct in question "merely implies some form of association", then the actions complained of are not likely to have the necessary level of "deceptiveness" to satisfy the requirements of the Trade Practices Act.[56] Indeed, within the context of Olympic sponsorship, the Honey case almost calls out for the use of Olympic athletes by non-sponsors, for although the public might be expected to assume that a company is dong do so for financial gain, a competitor would be hard pressed to prove that the mere use of top quality athletes infers an official endorsement from the relevant Olympic committee. The standard set in Honey and others like it is simply too onerous.

These cases demonstrate that the law has not traditionally been well suited for dealing with implicit associations between an advertiser and a major sporting event. For organisers of the Sydney Olympics, this not surprisingly gave rise to considerable concern. The question that remained for Olympics organisers was how the law could be framed so as to prevent these implicit associations in the course of advertising by non-sponsors.

Cashing in on the Olympics: Senate Inquiry Report

In 1993, Sydney was awarded the right to host the 2000 Summer Olympics. The enormous costs of staging this event and the need to maximize income brought the problem of ambush marketing into sharp focus in Australia, so much so that in June, 1994, the Australian Senate asked the Senate Committee on Legal and Constitutional Affairs to inquire into and report on:

The protection afforded to the various words and symbols associated with the Olympics in Australia in the lead up to 2000, and during, the Games of the 27th Olympiad in Sydney in the year 2000 and whether legislative protection should be extended beyond that enacted by the Federal Parliament.[57]

Much of the Committee's work focused on the extent to which current legal protections were inadequate for dealing with now prevalent ambushing marketing techniques. Specifically, the Committee focused on those legal remedies found via the Trade Practices Act, the Olympic Insignia Protection Act, the Copyright Act and the Designs Act. The Committee noted that the most problematic area of ambush marketing concerns those strategies (discussed throughout this paper) which tend to be more subtle than those involving the actual use of protected insignia and already copyrighted material. The latter, the Committee concluded, tend to be relatively straightforward and thus easier to target. The Committee also surveyed a number of international cases in which the courts have been asked to determine whether certain advertising strategies could be seen to mislead the public into believing that official sponsorship existed, when in fact it did not.[58] These cases often involved legislation similar to the Trade Practices Act. The committee's conclusion with respect to Trade Practices legislation was that:

...a false representation of an "official association" would come within section 53c However, it seems unlikely that conduct which merely implies some form of association with the Olympic movement or the Olympics generally would be found to have the necessary level of "deceptiveness."...For example, advertisements which, while creating some confusion of an association with the Olympics, were not misleading, may not contravene the TPA provisions.[59]

The Senate Report accepted that current legislation did not prevent subtle and direct associations, only clear misrepresentations. It concluded that without additional measures, there would be a likelihood that not only would ambush marketing occur, but this would have a detrimental impact on the organising budget of the Games.

In the final analysis, the Committee made a number of recommendations which it suggested be implemented in new legislation aimed at improving already existing legal models. Its overall objective was the introduction of extraordinary measures aimed at discouraging corporations and individuals from associating their goods and services with the Games without entering into appropriate arrangements with Olympic organisers.

The Committee concluded that one way to limit ambush marketing would be to protect and better monitor the use of commonly recognised Olympic words, sounds and images, thereby ensuring that only official sponsors could use them. Amongst its recommendations for doing so was the suggestion that certain Games expressions, including the words "Games" and the number "2000", be protected and reserved solely for the use of official sponsors. The Committee also recommended that the following be protected:

Sydney Games images or sounds used in a context which would to the ordinary person represent a connection with the:
1. Sydney Games Bodies
2. Sydney Games Olympics;
3. The Sydney 2000 Paralympics;
4. Any activities arranged by or in connection with the Sydney Games Bodies, the Sydney 2000 Olympics or the Sydney 2000 Paralympics; or
5. Any Sydney Olympic Sites and Buildings.[60]

For the purposes of the above, "Sydney Games images or sounds" was defined to mean:

...any image or sound evoking the Sydney 2000 Games, Sydney 2000 Paralympic Games, teams attending the Sydney 2000 Games and Sydney 2000 Paralympic Games and any athletes who are members of such teams.[61]

The Committee also recommended that there be a publicity campaign to assist the public to clearly identify Olympic sponsors.[62]

The Sydney 2000 Act

Many, but not all, of the Committee's recommendations were passed as the Sydney 2000 Games (Indicia and Images Protection) Act. The Act itself is a comment on the power of the advertising dollar associated with the Olympic symbol and the Sydney 2000 Games - this intersection being made explicit in sub-section 3 of the Act which provides:

(1) The objects of this Act are:-
(a) to protect, and to further, the position of Australia as a participant in, and a supporter of, the World Olympic and Para-Olympic movements; and
(b) to the extent that it is within the power of the Parliament to assist in protecting the relations and ensuring the performance of the obligations of the Sydney 2000 Games bodies with and to the World Olympic and Para-Olympic movements, in relation to the holding of the Sydney 2000 Games.
(2) These objects are to be achieved by facilitating the raising of licensing revenue in relation to the Sydney 2000 Games through the regulation of the use for commercial purposes of the indicia and images associated with the Games.

Sections 8 and 9 of the Sydney 2000 Act provide a number of definitions, which themselves are quite revealing. Pursuant to section 8, for example, Sydney Games indicia to be protected are said to include the words "Games City", "Sydney Games", "Olympics", "Olympiad" and others modelled along the lines suggested by the Senate Committee.[63] Pursuant to section 9 of the Act "Sydney 2000 Games images", also to be protected, are defined as including:

any visual or aural representations that, to a reasonable person, in the circumstances of the presentation, would suggest a connection with the Sydney 2000 Olympic Games and the Sydney 2000 Paralympic Games.

Section 11 of the Act defines use for commercial purposes and provides that use of protected indicia and images occurs if:

(a) the person causes Sydney 2000 Games indicia or images to be applied to goods or services of the person; and
(b) the application is for advertising or promotional purposes or is likely to enhance the demand for the goods or services; and
(c) the application, to a reasonable person, would suggest that the first person is or was a sponsor of, or is or was provider of other support for:
(i) the Sydney 2000 Olympic Games or an event arranged by SOCOG, the Australian Olympic Committee Inc or the International Olympic Committee in connection with the Sydney 2000 Olympic Games.

Section 12(1) of the Act contains a prohibition against the use of Sydney 2000 Games indicia or images for commercial purposes unless SOCOG or a licensed user uses it. Section 12(5) provides that for the purposes of sub-section (1), the use of indicia so closely resembling Sydney 2000 Games indicia as to be likely to be mistaken by a reasonable person for Sydney 2000 Games indicia, is to be taken to be use of those Sydney 2000 Games Indicia.

Finally, Division 3 of the Act provides for remedies including injunctions, corrective advertisements, damages and other remedies. Section 47(2) provides that the remedies provided under this Division are in addition to the remedies provided by the Trade Practices Act in relation to sections 52, 53(c), and 53(d) of the Trade Practices Act.[64]

What is most apparent in contrasting the Committee's early recommendations with the actual legislative regime that followed its report, is the extent to which the legislation does not follow all of the Committee's suggestions and the extent to which many of the recommendations that were adopted do little more than mimic already existing legal remedies. Remedies which, the final section of this paper will argue, only ensure that the types of ambush marketing tactics the Committee hoped to address go unchecked. In examining the Act in light of the Senate Committee's recommendations, it is apparent that the definitions in the Act are considerably narrower, and arguably weaker, than the definitions proposed by the Senate Committee. With respect to the definition of "Sydney Games and Images", and the regulation of these words and images, for example, it is worth noting that the word "evoking" has been replaced by the word "suggesting" and "context" has been replaced by "in the circumstances." The most significant deletion in the Act, however, is the Committee's suggestion that the expression "teams attending the Sydney 2000 Games ... and any athletes who are members of such teams" also be included in the definition of "images and sounds".

It is difficult to know exactly how a court of law would go about interpreting the definitional sections in legislation like the Sydney 2000 Act. Decisions subsequent to the proclamation of this Act, however, do not bode well for successful claims under any legislation of this sort. Perhaps the most important of these is New Zealand Olympic and Commonwealth Games Association Inc v Telecom New Zealand,[65] handed down in May 1996. Although the case is a New Zealand case and did not deal with the Sydney 2000 Act, it is still relevant to the issue of ambush marketing, the Olympic movement and sports sponsorship generally. In particular, the court's analysis of what we can and cannot expect of the "reasonable person" in these circumstances is revealing.

Telecom New Zealand published an advertisement that featured the word "ring" positioned so as to equate to the relative positions of the rings of the Olympic symbol. Specifically, the newspaper advertisement contained the word "ring" in large letters three times across the top line and twice across a lower line with the two lower "ring" words being beneath the gaps between the upper three. The colours of the individual words were, working from left to right upper line, blue, black, red, lower line, yellow, green. The advertisement was centred against a plain background. It also stated, again in capital letters, the phrase "with Telecom mobile you can take your own phone to the Olympics." It then included, in smaller case type, a message as to the ability to use Telecom mobile phones if travelling to the Olympics. The advertisement ended with a Telecom logo and mobile phone representation.[66]

The New Zealand Olympic Association sought an interlocutory injunction alleging that the advertisement breached sections 9 and 13 of the New Zealand Fair Trading Act because it suggested an association or connection between Telecom New Zealand and the Olympic Movement. The court refused to grant the injunction, finding that the question to be answered in order to determine whether or not a misrepresentation had occurred was whether the advertisement taken as a whole, read in the way a "typical" newspaper reader would read it, conveyed an impression that there is some connection or association between Telecom and the Olympic movement, either generally or as a sponsor. The court was not convinced that such a message was conveyed, finding that the "average reader" would not be mislead by the advertisement:

In the end it is necessary for me to make up my own mind, and within that to apply common sense. I accept those who read newspaper advertisements tend to browse. They will not be reading advertisements in a closely focused way, at least in the first instance. Those who notice the five coloured "ring" words, then drop their gaze to the next line picking up the reference to Olympics, and then refer back to the five "ring" words, and then make an association with the five circle Olympic symbol, will be mildly amused. It will then seem like a cartoon or a clever device. It is the sort of situation where one pauses for a moment to laugh, and acknowledge the lateral thinking involved. However, it is a long way from that brief mental process to an assumption that this play on the Olympic five circles must have been with the authority of the Olympic organisation, or through sponsorship of the Olympics. It quite simply and patently is not the use of the five circles as such. There is not a circle in sight, let alone a fern leaf. It is not as though there were five actual circles in the advertisement caricatured in some way, as, for example, with little animals swinging from the tops or peering out. It is not the sort of design like that where the reader would then be likely to pause and say, that seems close to the wind, I suppose they must have got permission for that."[67]

Although the Telecom case is not binding in Australia, there is little reason to believe that the analysis provided in that case would not be similarly applied here. In the case of Australian Olympic Committee Inc v. Baxter,[68] for example, a hearing officer, in his decision to allow the registration of a trade mark incorporating the words "THE OLYMPIC", rejected a submission that section 11 of the Sydney 2000 Act had been infringed, noting that:

While the trade mark use of the word "Olympic" would clearly be caught by the Act, as "commercial use", the protection afforded to the word is qualified in that the use must suggest to a reasonable person that the user was a sponsor or provider of other support for the Sydney Olympic Games. It is not enough to suggest some vague, undefined connection with Olympic Games or the Olympic movement in general but a precise association with the Sydney 2000 Games.[69]

Recall also that in the Honey case, discussed above, in making its objective assessment as to whether the poster indicated that Honey endorsed Australian Airline products, the Full Court had regard to the following factors:

1. the photograph was not contrived or posed and appeared to have been taken in actual competition;

2. the prominence of the name and logo of the advertiser on the poster;

3. the absence of an express assertion that the athlete endorsed the advertiser;

4. the groups to whom the poster was directed;

5. he fact that the poster was part of a series.[70]

Although the Full Court did not expressly apply the test of a reasonable person in its reference to an objective assessment, it can be argued that the factors it regarded as relevant make it clear that the standard required is that of the reasonable person. This is problematic for, as most of the cases discussed in this paper have demonstrated, when objective assessments are to be made which rely on a determination of what the public may or not be lead to believe, the result is such that "where the marketing activities in question are sufficiently subtle they may not be actionable no matter how "immoral" they may appear to some."[71]

The above would seem particularly relevant with respect to the use of athletes in advertising. As noted, the Senate Committee specifically sought to exclude the use of Olympic athletes by non-sponsors. There was always a definitional problem in this recommendation in that the members of teams are not selected until shortly before the Games. Nonetheless, that could have been covered with a sufficiently wide definition. The Senate Committee specifically recognised the possibility of a competitor ambush marketing an Olympic sponsor by developing advertisements using Olympic athletes but the legislation itself does not address this issue.

Regardless of one's personal views on the ethics of such a tactic, it is clear that a critical element in much Olympic advertising is the use of potential Olympic athletes. Although the AOC initially sought to limit the use of Olympic athletes by non-sponsors, it is clear that this would have imposed considerable limits on freedom of commercial activity and would have met with fierce resistance.[72] That being the case, it is arguable that once athletes can be used in pre-Olympic marketing, the battle against ambush marketing is made much more difficult. Note, for example, the successful use of Australian athletes by both Qantas and the National Australia Bank. A review of their marketing tactics reveals that the Sydney 2000 Act did little more to address ambush marketing than the legal regime it aimed to improve.

The Sydney 2000 Advertising Games

In the period leading up to the Sydney Games, both Ansett and Qantas Airlines embarked on marketing campaigns that featured athletes, including Olympic athletes. Note, for example, the following Qantas television advertisements which appeared prior to the Games. These advertisements received considerable airtime and public recognition:

A 1997 Roy Morgan consumer poll revealed that Qantas Airlines was one of the Sydney Olympics better-known corporate sponsors.[73] 42% of all Australian respondents indicated that they thought Qantas was an official sponsor of the Games. Only 15% of the same respondents indicated that they thought Ansett was an official sponsor.[74] Qantas was not an official 2000 Games sponsor. Ansett was. Despite this, a poll conducted by Woolcott Research in July 1999 found that 58% of those surveyed were sure that Qantas had signed up as a sponsor of the Sydney 2000 Games compared to 38% for Ansett.[75]

Early Qantas advertising campaigns featured a series of athletes including Michael Doohan, the former World 500cc Motor Cycle Champion, Greg Norman and John Eales, the Australian Rugby captain. These advertisements were based around Qantas' successful "I Still Call Australia Home" theme song. These campaigns also featured Olympic athletes Cathy Freeman and Kieren Perkins. Cathy Freeman is closely associated with one of the premier Olympic track events, the 400 metres. She represented Australia at the 1996 Olympics, winning a silver medal. She also represented Australia at the World Championships, winning a gold medal, and as anticipated represented Australia at the 2000 Olympics winning a gold medal.

Since 1997, Freeman has featured in a Qantas advertisement that shows her with her arms outstretched and crossing the finishing line. When she won the World Athletics Championship 400 metre final in 1998, this advertisement appeared on the back of the Australian newspaper sports section underneath an article by Jenny McAssey, that reported Freeman's victory. [76] The article's introductory paragraph stated:

Australia's new 400 metre World Champion Cathy Freeman will have to withstand extraordinary pressure in the three-year lead up to the Sydney Olympics.[77]

The use of Freeman in Qantas's marketing campaigns was a huge public relations success - so much so that a poster of the athlete appeared behind Qantas Chairman, James Strong, when the airline's profit announcement was made in 1997.

In a similar move, the National Australia Bank ran a series of advertisements featuring 100 and 200 metre sprinter Lauren Hewitt and various other athletes. As Rochelle Burbury explains, "NAB launched its team national campaign with 12 elite athletes in December, 1996, almost 6 months before official sponsor Westpac launched its athlete based campaign. The NAB deal is believed to have cost less than a quarter of what Westpac spent on the rights to official Olympic recognition."[78]

None of the Qantas or NAB advertisements prior to the Olympics featured Olympic athletes exclusively. Despite this, however, as already noted, Qantas had a much higher awareness as an Olympic sponsor than Ansett. The problem for both Ansett and Westpac, the official sponsors, was that there was no suggestion in any of the advertising strategies described above that the business of Qantas was the business of Ansett or that the business of NAB was the business of Westpac. Nor was there any overt reference to either party being officially linked with the Olympic movement itself.

As the Sydney 2000 Games drew nearer Qantas stepped up its advertising campaign. Qantas sponsored both pre-Olympic meets and the Olympic selection trials for the Australian swimming team. The trials were broadcast from the Olympic swimming pool and the broadcast featured the Qantas name and logo (see below). From this, one might reasonably assume that Qantas was able to establish a link between it and the "Olympic" pool and the Australian Olympic swim team. Qantas continues to support the national swimming championships. Qantas also sponsored the Bledisloe Cup rugby game between Australia and New Zealand which was held at Stadium Australia - the main stadium for the Olympics. A Qantas "flying kangaroo" logo formed on the arena at Stadium Australia featured prominently in Qantas's advertising. Again, one might reasonably assume that Qantas was able to establish a link between it and the Olympic Stadium.

In late August 2000 The Sydney Morning Herald and The Age promoted and published a lift-out and poster featuring Australia's Olympians at the Sydney 2000 Games. On 28 August one paper's masthead advertised "Tomorrow Meet our Olympic stars: The Path to Gold Liftout & Poster." On 29 August the masthead featured "Souvenir Edition Our Olympic Stars Complete Guide to the Australian Team - Liftout & Poster." These appeared as follows:

The Sydney Morning Herald and The Age were "Team Millennium Olympic Partners" so there could be no criticism of the lift-out or souvenir poster as such. The cover of the lift-out featured Michael Klim, the Olympic Swimmer, the paper's logo and an advertisement for a dot.com company:

However, the poster contained in the lift-out featured the words "Sydney 2000", the paper's logo, Cathy Freeman and a Qantas advertisement running along the bottom of the poster.

The following day, 30 August, Qantas ran a full-page advertisement headed "Australia Wide Olympic* Sale". The asterisk drew the conscientious reader's attention to a statement in small point type that "Qantas is not an Olympic Sponsor".

Ansett brought proceedings in the Federal Court for an injunction to prevent Qantas engaging in ambush marketing activities. It requested an expedited hearing because of the proximity of the Olympics, which were to start on 15 September.[79] Although the hearing commenced, it settled after several hearing days without a decision from the court. There seems little doubt that Qantas emerged victorious since there was no declaration of infringing conduct or any corrective advertising ordered.

If Ansett could not successfully prosecute an action in these circumstances under the Sydney 2000 Act then it is unlikely that ambush marketing can be prevented under this Act or any other Act with a similar objective. The Sydney 2000 Act was effective in preventing the sale of unlicensed Olympic products next to official merchandise without fluorescent disclaimers on its unlicensed merchandise[80] but that could have been achieved under the Trade Practices Act. SOCOG did have some success in preventing attempts at alleged ambush marketing by Omo and National Australia Bank and Mazda (Mazda eventually withdrew an advertisement which congratulated Olympian Michael Klim - who is sponsored by Mazda). However these cases were not tested in court.[81] Given the result in the Qantas case outlined above, it is arguable that court cases would not have proven successful. Indeed, in light of the result in the case against Qantas and the sparse reporting of any other cases, it appears that unless there is an explicit breach of the Olympic Insignia Act or the defined expressions sections of the Sydney 2000 Act, it will be difficult to argue that there has been an infringement or that the advertising is in any sense unlawful. The Qantas advertisements, for example, did not feature the Olympic motto, the Olympic symbol, the other Olympic designs or the torch and flame. Similarly they did not use any of the Sydney 2000 Games indicia. Arguably there may have been a breach of Section 12(1) of the Sydney 2000 Act, which prohibits the use of Sydney 2000 Games images for commercial purposes. However, as this paper has revealed, it is unlikely that the courts will see this type of visual representation as a marketing tactic which, to the reasonable person in the circumstances of the presentation, suggests a connection with the Sydney 2000 Olympic Games. It may, in fact, imply little more than "the encouragement of sporting excellence."

If the market research is correct, Qantas had a higher awareness as an Olympic sponsor. But what, exactly, was the reason for this misconception? Was it a result of a "misleading" marketing campaign or simply that many people in Australia expect Qantas, the Australian airline, to be the Olympic airline? In response to Qantas's marketing strategies, Ansett Olympics spokesman Michael Rolnick has explained that, "our principal competitor was the Olympic sponsor for 40 years before we got the sponsorship - and an icon brand - so it's very difficult to use the public as a measure for success."[82] Despite its conflict with Qantas, Ansett has apparently expressed considerable satisfaction with its overall Olympics marketing campaign. Of course, the question this paper poses is: how much happier would the airline have been had Qantas's marketing strategies been further curtailed?[83]

Similarly, the sponsorship of Ian Thorpe provided headaches for Nike - the official clothing supplier for the Australian Olympic team. Thorpe was sponsored by Adidas. At a medal presentation ceremony, the swimmer had his towel draped over the Nike logo on his official team tracksuit. His photo subsequently appeared throughout Australia:

Thorpe and Adidas have denied that this was done deliberately. Nonetheless, one can understand Nike's concern that the public might not see it as the official Olympic sponsor. It is interesting to note that at the 1992 Barcelona Games Nike sponsored those on the US basketball team who avoided displaying the Reebok logo on their official team tracksuit by draping the US flag over it.[84] In the case of Nike it is hard not to regard the result, however unintended, as poetic justice. It is important to remember that ambush marketing is largely practised by large national and international corporations well able to look after themselves, and the question posed by the Thorpe example is, should athletes be forced to display the official sponsors logo?

In a similar vein, no-one has suggested that Temple of Sport.com - which took out an advertisement on the cover of the Sydney Morning Herald/Age lift-outs - had breached the Sydney 2000 Act despite the fact that that the advertisement was in the same position as the Qantas advertisement on the poster. It is also difficult to argue that television manufacturer Loewe's advertisement containing the words "Olympic box seats" (as shown below) could suggest that Loewe was a sponsor of the Games or otherwise affiliated with the Games.

Similarly, although Landrover's use of the slogan "Let the Games Begin" in its advertisements at the time of the Sydney Olympics was "clever", no-one would suggest that it went beyond that. Indeed, no-one has yet suggested any adequate test to determine whether the line has been crossed. Is it the total image or a course of conduct which constitutes ambush marketing in breach the Sydney 2000 Act? It seems unlikely that anyone will be able to define a test given the varied forms of sponsorship and advertising detailed above and the competing interests of the event and the individual federation, teams and individual athletes. Note, for example, the use of Cathy Freeman by advertisers pre and post Sydney 2000. Freeman is clearly regarded as an Olympic competitor. However, she is also an Australian competitor, an Aboriginal competitor, a Commonwealth Games competitor and a world athletics championships competitor. She was one of the highest, if not the highest profile Australian athletes in the Games. The only other competitor with a comparable profile was Ian Thorpe and both featured on the cover of the official 2000 Olympics souvenir program.

Should Qantas have been prohibited from advertising in any medium that featured Cathy Freeman because she had featured in Qantas advertising?

Cathy Freeman also featured in Optus advertisements. Telstra was Optus's rival and an official Olympics sponsor. Should Cathy Freeman have been prohibited from appearing in advertisements for non-official sponsors for a period before the Sydney 2000 Games? While the IOC Charter (binding all athletes) restricts athletes from engaging in marketing activities during the Games period, would it have been fair, even ethical, to limit her activities prior to the Games? Equally, should Optus, the sponsor of athletics in Australia for over 5 years, have been prevented from sponsoring her?

These are not easy questions to resolve and, as this paper has explained, the courts have been reluctant to draw the types of inferences that need to be drawn in order to succeed with such a claim. Traditional trade practices law has simply proven ill suited for tackling marketing techniques of this sort. The question is, do we honestly expect the courts to be any less reluctant under this new statutory regime in light of this history? It seems unlikely. Indeed, it is probable that the only effective way to prevent people from making an incorrect association would be to prevent the rivals of Olympic sponsors from featuring and sponsoring potential Olympic athletes and any Olympic sporting disciplines. This is not a strategy that is likely to commend itself to athletes or sports organisations. However understandable the aims of the Senate Committee and the Sydney 2000 Act, the aim of preventing subtle associations was unrealistic and it is unlikely any legislative initiative could have, or indeed should have, achieved this goal.

Conclusion: A Need for Non-Legal Strategies?

The Australian Financial Review, 13 July 2000

If one overall conclusion is to be drawn from the experience of the Sydney 2000 Act, it is that the reality of ambush marketing is such that laws alone may well prove inadequate for responding to ingenious marketing strategies. Townsley Sports Lawyers, analysing the aftermath of the 1994 Winter Olympics, argue that organisers of events of this magnitude must develop an overall strategy which includes both legal and practical (non-legal) initiatives for dealing with the issue of ambush marketing.[85] An overview of the case law and legislation relevant to this issue would seem to support this argument. One of the practical initiatives suggested by the Senate Committee was a publicity campaign designed to clearly identify Olympic sponsors. Unfortunately, SOCOG did not commence such advertising (shown below) until late in 1997. This was long after Qantas, for example, had targeted audiences with an Olympics-based marketing campaign that can only be described as ingenious and, as this paper has demonstrated, legally sound. In other words, while SOCOG did what it should have done, it was a case of "too little, too late."

In so far as legal responses are concerned, in 1997 the IOC announced that any future city bidding for the Olympic Games must secure all advertising space within the city limits of the Games for the entire month in which the Games are to be held. This, the Committee, explains will ensure that all billboards, all posters, all paintings on buildings and all advertisements on buses will be under the control of Olympic leaders. Athens, which will host the 2004 Summer Olympics, has agreed to do so at a cost to the city of $10 million. Similarly, the organisers of the 2002 Winter Games in Salt Lake City have negotiated an arrangement with three of that city's largest outdoor media owners to secure a number of billboards along a 70-mile stretch through the city - all of which will now be reserved for official sponsors.[86] Similarly, New South Wales, the host state for Sydney 2000, enacted the Olympic Arrangements Act which prohibited advertising on buildings and structures, aerial advertising and broadcasting.[87]

Naturally, others tactics abound. In 1994, for example, organisers for the Atlanta Olympics announced the establishment of a sponsor protection program. Organisers explained that if a non-sponsor attempted to ambush the Games, the protection program would present the "ambusher" with market research within 48 hours of the advertisement's first appearance, indicating that its advertising was deceiving the public. If the advertisement were not immediately removed, the program would call a press conference announcing the ambush incident. It also ran advertisements in major publications condemning the "ambushers" for exploiting the Olympic Games without paying the sponsorship fees that are used to pay for, among other things, the training of Olympic athletes.[88]

It has not been the purpose of this paper to judge the appropriateness or likely success of these and other anti-ambush marketing strategies. This has been done in considerable detail elsewhere.[89] What can be said, however, is that, not surprisingly, they have proven and will likely continue to prove controversial in their own right. What these tactics highlight are the many challenges events organisers vested with the responsibility of protecting corporate sponsors are faced with, particularly when dealing with a highly visible and lucrative sporting event like the Olympic Games. Whether or not non-legal strategies will in fact assist in future sporting events in this regard remains questionable. What this paper has highlighted, however, is that something in addition to the type of legal solutions contained in the Sydney 2000 Act must be given serious consideration and much more discussion. The law as it now stands seems unable to accommodate the concerns of official corporate sponsors. There is no limit to human ingenuity. As such, ambush marketing at the margins will arguably always occur. Indeed, it has almost become a "game" in its own right and one that, arguably, the public quite enjoys.[90]

The Sydney 2000 Act, aimed as it was at rectifying those situations of most concern to official corporate sponsors, did not achieve that which its proponents had hoped for. As such, it does not stand out as an acceptable alternative for those charged with organising future events and raises the question as to whether more can indeed be done to ensure better protections. As one commentator has noted, despite the flaws identified in this paper, Sydney went further than ever before in trying to do what sponsors demanded be done and was arguably more successful than other host cities in controlling some aspects of ambush marketing strategies.[91] Nevertheless, it is clear that the control of ambush marketing requires additional strategies. The challenge now for lawyers and non-lawyers alike is to determine what these strategies should entail.

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Notes

[1] Geoffrey Brewer, "Be Like Nike", (1993) Sales and Marketing Management 67 at 70, quoted in Denise Doust, "The Ethics of Ambush Marketing" in The Cyber-Journal of Sport Marketing http://www.cjsm.com/Vol1/doust.html

[2] The IOC's figures for 1997-2000 show that income came from the following sources: broadcast rights fees 51.2%, local sponsorship 17.5%, TOP/international sponsors 16.1%, ticketing 12.6%. licensing 1.7%, other 0.9%. As noted in Time, September 24, 2000.

[3] Anon, "Going for Gold", Media and Marketing Europe, June 1996. Brad Henning, Marketing Director for Visa agrees, pointing out that, "our research shows that consumers who are aware that we sponsor them feel good about the company and are more likely to use the card. The payback for Visa is going global. Only the Olympics allow us to do this in one event." Quoted in, Anon, "Going for Gold", Media and Marketing Europe, June 1996.

[4] Time, September 25, 2000.

[5] Rochelle Burbury, "Payback Time for Sponsors", The Australian Financial Review, September 15, 2000 at 54.

[6] Ibid

[7] See Michael Payne, "Ambush Marketing: The Undeserved Advantage", (1998) 15(4) Psychology and Marketing 323 at 327. See also, Sue Landau, "Budweiser Seeks Curbs on Ambush Marketing", Reuters New Service, July 15, 1998.

[8] A point brought to our attention by the referee for this paper. We acknowledge and thank this person for their extremely useful and informative comments on an earlier draft of this paper. Many of their comments have been incorporated into this paper.

[9] Steve McKelvey, "Sans Legal Restraint, No Stopping Brash, Creative Ambush Marketers", in Brandweek, April 18, 1994 at 20.

[10] Senate Legal and Constitutional References Committee, Cashing in on the Sydney Olympics: Protecting the Sydney Olympics from Ambush Marketing (Canberra: Commonwealth of Australia, 1995).

[11] Hereinafter, the Sydney 2000 Act. See Graeme Orr, "Marketing Games: The Regulation of Olympic Indicia and Images in Australia", [1997] 9 European Intellectual Property Review 504. See also Patrick Deane, "Exploitation of Olympic Symbols" [1995] 3 European Intellectual Property Review 161

[12] In analysing ambush marketing it is important to note that the term "ambush marketing" is inherently pejorative. It could just as easily have been called "association marketing". This paper will not address the ethics or propriety of ambush marketing. This issue has been effectively dealt with and debated elsewhere. See, generally, Paul O'Sullivan and Patrick Murphy, "Ambush Marketing: The Ethical Issues", (1998) Psychology and Marketing 349; Tony Meenaghan, "Ambush Marketing: Corporate Strategy and Consumer Reaction", (1998) 15 Psychology and Marketing 305; Denise Doust, "The Ethics of Ambush Marketing", The Cyber-Journal of Sport Marketing (http://www.cjsm.com/Vol1/doust.html); Stephen McDaniel and Lance Kinney, "The Implications of Recency and Gender Effects in Consumer Response to Ambush Marketing", (1998) 15(4) Psychology and Marketing 385.

[13] Frank Zimbo, "Ambush Marketing", (1996) 12(6) Australian New Zealand Trade Practices Law Bulletin 93

[14] Payne, supra. note 6 at 326.

[15] Examples of this type of infringement are numerous. A recent US example is found in the case of Host Communications v Kellogg (1994), unreported, United States District Court of Kentucky, No. 94-26, per Wilhoit, J. See also MasterCard International Inc v Sprint Communications Co. (1994) 30 USPQ 2d WL (US Dist.), as discussed in Anthony Verrelli, "Survey of Recent Developments in Sport" (1994) 4 Seton Hall J Sports L 726.

[16] Stephen Townley, Dan Harrington and Nicholas Couchman, "The Legal and Practical Prevention of Ambush Marketing in Sport", (1998) 15(4) Psychology and Marketing 333 at 335. Townley et al note (at 336) that "the 'ambusher' who employs the tactics set out under this heading is likely to be a more sophisticated and commercially wily animal", with typical examples of these activities including: unauthorised or unofficial merchandise; unauthorised or unofficial publications; unauthorised sales promotion activity; unauthorised broadcasts, virtual advertising, Web sites, live screenings, films, video, photography, telephone commentary, information lines, pager services; unofficial corporate sponsorship.

[17] See, for example, the National Hockey League et al v Pepsi Cola Ltd case discussed below.

[18] For example, both Qantas and Adidas, both non-sponsors, purchased television advertisements which were shown during the coverage of the Sydney 2000 Olympic Games.

[19] In June 2000, for example, Adidas launched a 12 part Olympics documentary series on the Ten Network which featured 10 Adidas sponsored athletes.

[20] Tony Meenaghan, "Ambush Marketing: Immoral or Imaginative Practice?" (1994) 34 (5) Journal of Advertising Research 77 at 81. See also Tony Meenaghan, "Ambush Marketing: A Threat to Corporate Sponsorship?" (1996) 38(1) Sloan Management Review 103. An excellent overview of Meenaghan's work is found in Doust, supra. note 11.

[21] Anon, "American Express Replies to Criticism" New York Times, January 27, 1992 at B8.

[22] For other examples, see Alexander Garrett, "Stick 'Em Up - And Outwit the Sponsor" The Observer, July 27, 1996 at 16; Andrew Steele, "Non-Sponsors Muscle in on Olympic Action", Reuters News Service, July 11, 1996; Jane Von Bergen, "Campbell Soup Uses Skating Stars, But It's Not Olympic Sponsor", The Philadelphia Inquirer, February 17, 1998 at 16; James Cox, "Wendy's Unofficial Ads Irk Organisers", USA Today, July 11, 1994 at 1B; Alan Bayless, "Ambush Marketing Is Becoming Popular Event at Olympic Game", Wall Street Journal, February 8, 1988 at 27; Helen Jones, "World Cup Sponsors Worry Over Advertising Ambush" Reuters News Service, April 15, 1998; Tim Reid and Richard Rivlin, "The Fields of Gold - The Biggest Game in Town", Sunday Telegraph, June 7 1998 at 24; Jason Nisse, "Sponsors Fall Victim to the ambushers", The Times, June 2, 1998 at 31; Tara Nealon, "Sponsorship: Stealing the Limelight", Marketing, August 15, 1996 at 33; Richard Cook, "Can Ambushing of Sponsored Events Be Stopped?", IAC Trade and Industry Database, April 18, 1997; Anon, "The Rings of Desire", Marketing Week, August 9, 1996 at 34; Patrick Barrett, "One in the Eye for Sponsors", Media Marketing, August 1, 1996 at 11; Russ Dewalt, "Miller Time At Underground Atlanta Takes Spotlight Away From Budweiser", The Atlanta Journal, June 12, 1996 at 10.

[23] Howard Schlossberg, "Marketing - The Holes in Exclusivity", Credit Card Management, May 31, 1997.

[24] Ibid

[25] Ibid

[26] Sue Landau, "Budweiser Seeks Curbs on World Cup Ambush Marketing" Reuters News Service, July 15, 1999. See also Denise Gellene, "Coke Sponsorship is no Longer the Real Thing", The Los Angeles Times, September 4, 1996 at 1 and Jeff Jensen, "Some Sponsors Pass in Game Adds", Advertising Age, January 23, 1996 at 3.

[27] Orr, supra note 10 at 505.

[28] Olympic Insignia Protection Act 1987 (Cth), section 5(1)(a).

[29] Ibid section 5(2)(a).

[30] Ibid section 5(2)(b).

[31] Ibid section 6.

[32] Ibid section 8.

[33] (1992) 92 DLR (4th) 349 (BC Sup Ct). For an excellent analysis of the cases and its possible implications in North America, see Robert Davis, "Ambushing the Olympic Games" (1996) Villanova Sports and Entertainment Law Forum 423. See also, Lori Bean, "Sports Sponsorship and the Lanham Act" (1995) 75 Boston University Law Review 1099.

[34] NHL v Pepsi at 353.

[35] Id

[36] Id

[37] Ibid at 352.

[38] Ibid at 354.

[39] Ibid at 355.

[40] Ibid at 356.

[41] Ibid at 356-357.

[42] Davis, supra. note 31.

[43] Ibid

[44] NHL v Pepsi at 359.

[45] Id

[46] [1972] 2 All ER 507 (HL).

[47] Specifically, the Court held that while "the Coke NHLS agreement obligates NHLS, so far as it is able, to protect the rights of Coke from ambush marketing, such an obligation cannot impose on a third party a duty to refrain from engaging in advertising its products in a manner which, although aggressive, is not, by the law of Canada, unlawful... It may be that, due to Coke's failure to secure the right to advertise its product during the television broadcasts of NHIC and the securing of such rights by the defendant, the commercial value to Coke of the right to describe its product as the 'official Soft Drink of the NHL' has less commercial value than would have been the case if Coke had also obtained the right to advertise on NHIC. But that cannot diminish the defendant's rights. " (Pepsi at 369).

[48] Ibid at 364.

[49] Davis, supra. note 31.

[50] (1989) 14 IPR 264 (Fed Ct - Gen Div).

[51] Ibid at 269.

[52] Id

[53] Ibid at 270.

[54] Ibid at 278.

[55] (1990) 18 IPR 185 (Fed CA) at 194.

[56] See also, Talmax Pty Ltd. And Another v Telstra Corporation Limited, (1996) 36 IPR 46 (Qld CA) and the Taco Bell case (1988) ATPR @40-303, in which it was held that "irrespective of whether conduct produces or is likely to produce confusion or misconception, it cannot, for the purposes of section 52, be categorised as misleading or deceptive unless it contains or conveys, in all the circumstances of the case, a misrepresentation.

[57] Senate Report, supra. note 9 at 1.

[58] See generally, McDonald's System of Australia Pty Ltd v McWilliams Wines Pty Ltd (no.2), [1980] FCA 159; (1980) 33 ALR 394; Weitman v Katies Ltd. and Ors, (1977) 29 FLR 336; 10th Cantanae Pty Ltd. v Shoshana Pty Ltd, (1988) 79 ALR 299; Pacific Dunlop Limited v Paul Hogan & Ors, (1989) ATPR @40-948; The Taco Bell Case, (1988) ATPR @40-303. Discussed in Senate Report, supra note 9 at pages 43-53.

[59] Senate Report, supra. note 9 at 52.

[60] Ibid recommendation 7 at 121.

[61] Ibid

[62] Ibid recommendation 2 at 118.

[63] As Deane points out, however, "it is interesting to note that the Bill singles out the use of the stand-alone references to the words "Olympic" and "Sydney 2000" when the Senate Committee report only proposed that those phrases be protected when used in conjunction with others." This is particularly surprising given that the rest of the Act tends to water down the report's recommendations, rather than use them as suggested or strengthen them. See Patrick Deane, "New Games Protection Bill to Prevent Ambush Marketing", (1996) 9(1) Australian Intellectual Property Law Bulletin 14.

[64] It is beyond the scope of this paper to examine the likely use and success of the Act's remedial powers. See, generally, however, Tom Altobelli, "Cashing in on the Sydney Olympics" (1997) Law Society Journal 44 and Deane, supra. note 61 at 15.

[65] (1996) 35 IPR 55 (High Court NZ).

[66] Ibid at 56.

[67] Ibid at 60.

[68] (1996) 36 IPR 621 (per Homann, Hearing Officer). Although Baxter is primarily a trade marks case, the court does make passing reference to the Sydney 2000 Act. The court's conclusions in this regard do not bode well for the future application of the Act as the decision relies heavily on past interpretation of Australian trade practices law - an interpretation which, as this paper has shown, does not deal well with ambush marketing techniques.

[69] Ibid at 632.

[70] Honey, supra. note 48 at 278-280.

[71] Owen Morgan, "An Olympic Ring-In, Ambush Marketing in NZ", (1997) 10(5) Australian Intellectual Property Law Bulletin 72 at 75.

[72] A point raised by the referee for this paper, to whom we are most grateful for her/his assistance and helpful comments.

[73] Rosemary Ryan, "Ansett Games Campaign Under the Starter's Gun", Daily Telegraph, November 12, 1997 at 51. See also, "Anon, "Non-Sponsors are benefiting From Games", Countdown 2000, September 1997

[74] Ibid

[75] Lehmann, "Olympic hijack" The Weekend Australian, September 4-5 1999 at 29-30.

[76] The advertisement, which covered one half of the back page of the Australian sports section, appeared at page 48 on August 6, 1997. The ads headline read, "A TRULY WORLD CLASS PERFORMANCE", under which appeared the following congratulatory message: "Qantas congratulates Cathy Freemen on winning the 400 m final at the World Athletic Championships. Qantas shares Cathy's lifelong commitment to sport and her passion to be the best."

[77] Jenny McAssey, "Pressure Mounts on Cathy for 2000", The Australian, August 6, 1997 at 48.

[78] Rochelle Burbury, "Ambush Tactics: It's a Jungle Out There", The Australian, July 24, 1997 at 31. Burbury has written extensively on ambush marketing strategies leading up to the Sydney Olympics. See, eg, Burbury, "Opportunity Knocks for Adventurous Sponsors" The Australian, October 28, 1998 at 36 and Burbury, "It's War Out There, So Ambush Tactics Are Legitimate", The Australian, October 16, 1997 at 30. For other specific examples of Pre-Olympic ambush marketing strategies, see Michael Evan, "Torch-Carrying Greek Galley Plan May be Sunk", Sydney Morning Herald, March 26, 1999 at 2; Anon, "Visa Olympics Deal Poses Problems", Cards International, December 18, 1998 at 9; Adam Turner, "NAB's Olympic Efforts Pay Off in Card Logo", Sydney Morning Herald, November 14, 1998 at 62 and Jeremy Flint, "NAB Card Takes on a Sporting Image", The Australian Financial Review, November 14, 1998 at 12. For examples of non-Olympic strategies, see Anon, "Tennis Placards Seized", The Daily Telegraph, January 23, 1999 at 147; Leithan Francis, "Mitsubishi Helpless Over Honda Ambush at MCG", Australasian Business Intelligence Ad News, October 9, 1998 at 6; Mark Duffield, "Football: AFL Sponsorship", The West Australian, October 7, 1998 at 18.

[79] Rochelle Burbury, "Ansett moves to thwart Qantas 'ambush'", The Australian Financial Review 5 September 2000 at 34.

[80] Lisa Allen, "SOCOG win against pirate Olympic caps", The Australian Financial Review, 27 July, 2000 at 5.

[81] Rochelle Burbury, "Ambush! All's fair in adland wars", The Australian Financial Review, 28 September 2000, at 34.

[82] Rochelle Burbury, "Payback time for sponsors", The Australian Financial Review 15 September 2000 at 54

[83] Again, this is a point brought to our attention by the referee to this paper. We acknowledge and thank her/him for his insights in this regard. See also Burbury, above, note 78.

[84] Rochelle Burbury, supra. note 77 at 34.

[85] See Townley et al, supra. note 15. See also Russell Falconer, "Ambush Marketing and How to Avoid It", (December 1996) Euro-money's Managing Intellectual Property 1; Shani and Sandler, "Ambush Marketing: Is Confusion to Blame for the Flickering of the Flame?", (1998) 15(4) Psychology and Marketing 367; Lionel Hogg, "Advising Sponsors of Sport", (1995) Queensland Law Society Journal 367.

[86] Jim Kirk, "Cities Buy Up Billboards, Stave Off Ad Ambush to Host Olympic Games", Chicago Tribune, October 27, 1997 at 2. See also, Peter V O'Brien, "Sit Back, Enjoy the Games and Ignore the Cash Registers Ringing", Australia/New Zealand National Business Review, July 19, 1996 at 13.

[87] Olympic Arrangements Act, sections 66 to 68.

[88] Ken Florin and David Carlin, "Ambush Marketing", Advertising Age, October 30, 1995 at 22. See also Jeff Jensen, "Ambush League: Olympic Sponsors See Potential Problems Inside Their Own League", Advertising Age, April 24, 1995 at 25; Leslie Bayer, "Ads Caution Olympic ambushers", Advertising Age, June 10, 1996 at 12E.

[89] See authors noted within, supra. notes 78-81.

[90] A point again raised by the referee for this paper and for which we are grateful.

[91] Ibid