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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Olympic
Insignia Protection Amendment Bill 2001
No.
, 2001
(Industry, Science and
Resources)
A Bill for an Act to amend the
Olympic Insignia Protection Act 1987, and for other
purposes
Contents
A Bill for an Act to amend the Olympic Insignia
Protection Act 1987, and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Olympic Insignia Protection Amendment Act
2001.
This Act commences on the 28th day after the day on which it receives the
Royal Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 Title
After “insignia,”, insert “for the regulation
of the commercial use of certain olympic expressions,”.
2 Before the heading to
Part I
Insert:
3 Part I (heading)
Repeal the heading, substitute:
4 After section 1
Insert:
The following is a simplified outline of this Act:
• Chapter 2 of this Act protects the olympic insignia
by:
(a) making the AOC the owner of copyright in the olympic symbol;
and
(b) making the AOC the owner of certain olympic designs; and
(c) providing that the olympic motto, the olympic symbol and certain other
olympic images must not be registered as trade marks.
• Chapter 3 of this Act prohibits the commercial use of certain
olympic expressions unless the user holds a licence granted by the
AOC.
5 Subsection 2(1)
Omit “this Act” (first occurring), substitute “this
Chapter”.
6 Subsection 2(1) (before the definition of
Australia)
Insert:
AOC or Australian Olympic Committee means the
Australian Olympic Committee Incorporated, being an association incorporated on
24 April 1985 under the Associations Incorporation Act 1981 of
Victoria.
7 Subsection 2(1) (definition of
Committee)
Repeal the definition.
8 Subsections 2(2) and (3)
Omit “this Act” (wherever occurring) , substitute “this
Chapter”.
9 Paragraph 2A(2)(b)
Omit “Committee”, substitute “AOC”.
10 Section 3
Omit “this Act”, substitute “this
Chapter”.
11 Section 4
Omit “This Act”, substitute “This
Chapter”.
12 Part II (heading)
Repeal the heading, substitute:
13 Section 5
Omit “Committee” (wherever occurring), substitute
“AOC”.
14 Part III (heading)
Repeal the heading, substitute:
15 Section 6
Omit “Committee”, substitute “AOC”.
16 Section 7
Omit “Committee” (wherever occurring), substitute
“AOC”.
17 Subsection 7(2)
Omit “this Act”, substitute “this
Chapter”.
18 Section 8
Omit “Committee” (wherever occurring), substitute
“AOC”.
19 Section 9A
Omit “this Act” (wherever occurring), substitute “this
Chapter”.
20 Section 10
Omit “Committee” (wherever occurring), substitute
“AOC”.
21 Section 11
Omit “Committee” (wherever occurring), substitute
“AOC”.
22 Subsection 11A(1)
Omit “Committee”, substitute “AOC”.
23 Part IV (heading)
Repeal the heading, substitute:
24 Section 15
Omit “Committee” (wherever occurring), substitute
“AOC”.
25 Section 16
Omit “Committee”, substitute “AOC”.
26 After section 18
Insert:
(1) The AOC is to maintain a Register in which the AOC includes prescribed
particulars of:
(a) licences granted by the AOC in relation to copyright in the olympic
symbol; and
(b) licences granted by the AOC in relation to the protected
designs.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Internet.
27 Section 19
Omit “Trade Marks Act 1955”, substitute “Trade
Marks Act 1995”.
Note: The heading to section 19 is amended by omitting
“Trade Marks Act 1955” and substituting
“Trade Marks Act 1995”.
28 Paragraph 19(ba)
Omit “under this Act”, substitute “for the purposes of
section 2A”.
29 Subsection 20(1)
Omit “this Act”, substitute “this
Chapter”.
30 Paragraph 20(1)(a)
Omit “Trade Marks Act 1955”, substitute “Trade
Marks Act 1995”.
31 Subsection 20(2)
Omit “this Act”, substitute “this
Chapter”.
32 Subsection 20(3)
Omit “Committee” (wherever occurring), substitute
“AOC”.
33 Paragraph 20(3)(c)
Omit “Trade Marks Act 1955”, substitute “Trade
Marks Act 1995”.
34 Section 21
Omit “this Act” (wherever occurring), substitute “this
Chapter”.
35 After section 21
Insert:
(1) The object of this Chapter is to protect, and to further, the position
of Australia as a participant in, and a supporter of, the world Olympic
movement.
(2) This object is to be achieved by facilitating the raising of licensing
revenue through the regulation of the use for commercial purposes of certain
expressions associated with the world Olympic movement.
In this Chapter, unless the contrary intention appears:
advertisement means any writing, still or moving picture,
sign, symbol or other visual image, or any audible message, or any combination
of 2 or more of those things, that promotes:
(a) goods or services; or
(b) a person.
An advertisement may:
(c) be in the form of a signboard; or
(d) be in a newspaper or periodical; or
(e) be broadcast on radio or television; or
(f) be placed on an Internet site; or
(g) be in any other form.
AOC or Australian Olympic Committee means the
Australian Olympic Committee Incorporated, being an association incorporated on
24 April 1985 under the Associations Incorporation Act 1981 of
Victoria.
Australia, when used in a geographical sense, includes the
following external Territories:
(a) Christmas Island;
(b) Cocos (Keeling) Islands;
(c) Norfolk Island.
broadcast means a transmission by means of:
(a) a broadcasting service within the meaning of the Broadcasting
Services Act 1992; or
(b) something that would be such a broadcasting service if the definition
of broadcasting service in subsection 6(1) of that Act were
amended by omitting all the words from and including “but does not
include” to the end of the definition.
continental shelf has the same meaning as in the Seas and
Submerged Lands Act 1973.
designated owner, in relation to goods imported into
Australia, means:
(a) the person identified as the owner of the goods on the entry made in
relation to the goods under section 68 of the Customs Act 1901;
or
(b) if no such entry exists—the person determined to be the owner of
the goods under section 50 of this Act.
expression includes a single word.
Federal Court means the Federal Court of Australia.
IOC or International Olympic Committee means
the organisation created by the Congress of Paris on 23 June 1894, being
the organisation entrusted with the control and development of the modern
Olympic Games.
licence means a licence in force under
section 38.
licensed user means a person in relation to whom a licence is
in force.
national sporting organisation has the same meaning as in the
Australian Sports Drug Agency Act 1990.
Olympian means a person who:
(a) was accredited by the IOC as a competitor in a sports competition in a
Summer or Winter Olympic Games; and
(b) has competed in that sports competition.
prescribed court means a court that is a prescribed court
under section 66.
promote includes give publicity to.
protected olympic expression has the meaning given by
section 24.
sponsorship-like support has the meaning given by
section 29.
statement includes a statement made orally, in writing or in
any other way.
use for commercial purposes, in relation to a protected
olympic expression, has the meaning given by section 30.
(1) For the purposes of this Chapter, each of the following expressions is
a protected olympic expression:
(a) Olympic;
(b) Olympics;
(c) Olympic Games;
(d) Olympiad;
(e) Olympiads.
(2) For the purposes of this Chapter, an expression so closely resembling
a protected olympic expression mentioned in subsection (1) as to be likely
to be mistaken, by a reasonable person, for such a protected olympic expression
is taken to be a protected olympic expression.
(3) To avoid doubt, for the purposes of this Chapter, the expressions
“Olympian” and “Olympians” are taken not to resemble a
protected olympic expression mentioned in subsection (1).
This Chapter binds the Crown in all its capacities.
This Chapter extends to:
(a) Christmas Island; and
(b) Cocos (Keeling) Island; and
(c) Norfolk Island; and
(d) the waters above the continental shelf of Australia; and
(e) the airspace above Australia and the continental shelf of
Australia.
(1) Without prejudice to its effect apart from this section, this Chapter
also has effect as provided by this section.
(2) This Chapter has, by force of this subsection, the effect it would
have if each reference to use for commercial purposes were a reference
to:
(a) use for commercial purposes by a corporation to which paragraph 51(xx)
of the Constitution applies; or
(b) use for commercial purposes by any person in the course of:
(i) trade or commerce with other countries; or
(ii) trade or commerce among the States; or
(iii) trade or commerce within a Territory, between a State and a
Territory or between the Territories; or
(iv) the supply of goods or services to the Commonwealth, a Territory, or
to an authority or instrumentality of the Commonwealth or of a Territory;
or
(v) the use of postal, telegraphic, telephonic or other like services;
or
(vi) the making of a broadcast; or
(c) use for commercial purposes by any person that detrimentally affects
the rights conferred by or under this Chapter on a licensed user that is a
corporation to which paragraph 51(xx) of the Constitution applies.
(1) For the purposes of this Chapter, an expression or a statement is
taken to be applied to goods or services if:
(a) in the case of goods, the expression or statement:
(i) is woven in, impressed on, worked into, or affixed or annexed to, the
goods; or
(ii) is applied to any covering, document, label, reel or thing in or with
which the goods are, or are intended to be, dealt with or provided; or
(b) in the case of goods or services, the expression or
statement:
(i) is used in an advertisement that promotes the goods or services;
or
(ii) is used in an invoice, price list, catalogue, brochure, business
letter, business paper or other commercial document that relates to the goods or
services.
(2) For the purposes of this Chapter, if:
(a) an advertisement promotes a particular person; and
(b) the person provides goods or services; and
(c) it would be concluded, by a reasonable person, that the advertisement
was designed to enhance the commercial image of the person mentioned in
paragraph (a);
the advertisement is taken to promote those goods or services.
(3) In this section:
covering includes packaging, frame, wrapper, container,
stopper, lid or cap.
label includes a band or ticket.
(1) For the purposes of this Chapter, a person provides
sponsorship-like support for:
(a) the AOC; or
(b) the IOC; or
(c) a Summer or Winter Olympic Games; or
(d) the organising committee for a Summer or Winter Olympic Games;
or
(e) an Australian Olympic team; or
(f) a section of an Australian Olympic team; or
(g) an individual member of an Australian Olympic team;
if, and only if, the person provides support on the understanding (whether
express or implied) that the support is provided in exchange for a right to
associate:
(h) the person; or
(i) goods or services of the person;
with the committee, games, team, section or individual concerned.
(2) A right mentioned in subsection (1) need not be legally
enforceable.
(3) An exchange mentioned in subsection (1) may be wholly or partly
for the right mentioned in that subsection.
(1) This section sets out the 2 situations in which a person is said to
use a protected olympic expression for commercial purposes.
Use for commercial purposes—situation (1)
(2) For the purposes of this Chapter, if:
(a) a person (the first person) causes a protected olympic
expression to be applied to goods or services of the first 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 the provider of sponsorship-like
support for:
(i) the AOC; or
(ii) the IOC; or
(iii) a Summer or Winter Olympic Games; or
(iv) the organising committee for a Summer or Winter Olympic Games;
or
(v) an Australian Olympic team; or
(vi) a section of an Australian Olympic team; or
(vii) an individual member of an Australian Olympic team;
then:
(d) if the expression is applied in Australia—the application is use
by the first person of the expression for commercial purposes; or
(e) if:
(i) the expression is applied to goods outside Australia; and
(ii) the goods are imported into Australia for the purpose of sale or
distribution; and
(iii) there is a designated owner of the goods;
the importation is use by the designated owner of the expression for
commercial purposes.
Use for commercial purposes—situation (2)
(3) For the purposes of this Chapter, if:
(a) a person (the first person), other than the AOC or a
licensed user, causes a protected olympic expression to be applied to goods or
services of the first 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 the provider of sponsorship-like
support for:
(i) the AOC; or
(ii) the IOC; or
(iii) a Summer or Winter Olympic Games; or
(iv) the organising committee for a Summer or Winter Olympic Games;
or
(v) an Australian Olympic team; or
(vi) a section of an Australian Olympic team; or
(vii) an individual member of an Australian Olympic team; and
(d) any of the following conditions are satisfied in relation to a person
(the second person) other than the first person:
(i) in the case of goods or services—the second person supplies, or
offers to supply, the goods or services;
(ii) in the case of goods—the second person exposes the goods for
supply by the second person;
(iii) in the case of goods—the second person keeps the goods for
supply by the second person or by another person;
the supply, offer, exposure or keeping, as the case may be, by the second
person is use by the second person of the expression for commercial
purposes.
Definition
(4) In this section:
supply includes:
(a) in the case of goods—supply (including re-supply) by way of
sale, exchange, lease, hire or hire-purchase; and
(b) in the case of services—provide, grant or confer.
For the purposes of this Chapter, if:
(a) a person has been involved in a Summer or Winter Olympic Games as an
Olympian; and
(b) the Games have ended; and
(c) the person makes, or authorises another person to make, a statement
that consists of, or includes, a factual reference to that involvement;
and
(d) the statement includes a protected olympic expression; and
(e) the statement is applied to goods or services; and
(f) the application of the statement is for advertising or promotional
purposes, or is likely to enhance the demand for the goods or services;
and
(g) the application of the statement would not suggest, to a reasonable
person, that any person is or was a sponsor of, or is or was the provider of
sponsorship-like support for:
(i) the AOC; or
(ii) the IOC; or
(iii) a Summer or Winter Olympic Games that has not ended; or
(iv) the organising committee for a Summer or Winter Olympic Games that
has not ended; or
(v) an Australian Olympic team in relation to a Summer or Winter Olympic
Games that has not ended; or
(vi) a section of an Australian Olympic team in relation to a Summer or
Winter Olympic Games that has not ended; or
(vii) an individual member of an Australian Olympic team in relation to a
Summer or Winter Olympic Games that has not ended;
the application of the statement is to be disregarded for the purposes of
this Chapter.
(1) For the purposes of this Chapter, if:
(a) a body that is:
(i) a national sporting organisation in relation to a sport; or
(ii) the Australian Sports Commission; or
(iii) a State/Territory institute or academy of sport;
has been involved in preparing or training Olympians in relation to a
Summer or Winter Olympic Games; and
(b) the Games have ended; and
(c) the body makes, or authorises another person to make, a statement that
consists of, or includes, a factual reference to that involvement; and
(d) the statement includes a protected olympic expression; and
(e) the statement is applied to goods or services; and
(f) the application of the statement is for advertising or promotional
purposes, or is likely to enhance the demand for the goods or services;
and
(g) the application of the statement would not suggest, to a reasonable
person, that any person is or was a sponsor of, or is or was the provider of
sponsorship-like support for:
(i) the AOC; or
(ii) the IOC; or
(iii) a Summer or Winter Olympic Games that has not ended; or
(iv) the organising committee for a Summer or Winter Olympic Games that
has not ended; or
(v) an Australian Olympic team in relation to a Summer or Winter Olympic
Games that has not ended; or
(vi) a section of an Australian Olympic team in relation to a Summer or
Winter Olympic Games that has not ended; or
(vii) an individual member of an Australian Olympic team in relation to a
Summer or Winter Olympic Games that has not ended;
the application of the statement is to be disregarded for the purposes of
this Chapter.
(2) For the purposes of this section, a State/Territory institute or
academy of sport is a body that is recognised by the Government of a State or
Territory as the principal organisation within the State or Territory that has
responsibility for preparing elite sportsmen and sportswomen for sporting
competition at the elite level.
(3) For the purposes of this section:
(a) an organisation that is a part of another body is taken to be a body
in its own right; and
(b) anything done on behalf of, or in the name of, the organisation by the
other body is taken to have been done by the organisation.
(1) For the purposes of this Chapter, if:
(a) a person has provided sports-related personal services (the
athlete services) to one or more Olympians in the person’s
capacity as a member of an Olympic team that participated in a Summer or Winter
Olympic Games; and
(b) the Games have ended; and
(c) the person makes, or authorises another person to make, a factual
statement about the provision of the athlete services; and
(d) the subject matter of the statement is limited to the provision of the
athlete services; and
(e) the statement includes a protected olympic expression; and
(f) the statement is applied to sports-related personal services of the
person (the ordinary services) that are the same as, or similar
to, the athlete services; and
(g) the application of the statement is for advertising or promotional
purposes in relation to the ordinary services, or is likely to enhance the
demand for the ordinary services;
the application of the statement is to be disregarded for the purposes of
this Chapter.
(2) In this section:
sports-related personal services means any of the
following:
(a) coaching services;
(b) medical or other health services;
(c) dietary consultative services;
(d) psychological or other counselling services;
(e) any similar services designed to maintain or enhance a person’s
sporting performance.
For the purposes of this Chapter, if:
(a) a person supplied goods or services (other than services covered by
paragraph 33(1)(a)) to:
(i) an Olympic team that participated in a Summer or Winter Olympic Games;
or
(ii) the organising committee for a Summer or Winter Olympic Games;
and
(b) the Games have ended; and
(c) the person makes, or authorises another person to make, a factual
statement about that supply; and
(d) the subject matter of the statement is limited to that supply;
and
(e) the statement identifies the Games in relation to which the supply was
made; and
(f) the statement includes a protected olympic expression; and
(g) the statement is applied to goods or services of the person (the
ordinary goods or services) that are the same as, or similar to,
the goods or services mentioned in paragraph (a); and
(h) the application of the statement is for advertising or promotional
purposes in relation to the ordinary goods or services, or is likely to enhance
the demand for the ordinary goods or services;
the application of the statement is to be disregarded for the purposes of
this Chapter.
(1) To avoid doubt, for the purposes of this Chapter, the use of a
protected olympic expression for the purposes of, or in connection with, the
provision of information or for the purposes of criticism or review is not alone
sufficient to suggest a sponsorship, or the provision of sponsorship-like
support, for the purposes of paragraph 30(2)(c) or (3)(c).
(2) In subsection (1):
(a) a reference to the provision of information includes a reference to
the reporting of news and the presentation of current affairs; and
(b) a reference to criticism or review includes a reference to criticism
or review:
(i) in a newspaper, magazine or similar periodical; or
(ii) in a broadcast; or
(iii) on the Internet; or
(iv) in a video recording or a film.
(1) A person, other than the AOC, must not use a protected olympic
expression for commercial purposes.
(2) Subsection (1) does not apply to the use by a person of a
protected olympic expression if:
(a) the person is a licensed user; and
(b) the protected olympic expression is an expression that the person is
licensed to use; and
(c) that use is in accordance with the terms and conditions of the
licence.
For the purposes of this Chapter, a person is taken to have contravened
section 36 if the person:
(a) has attempted to contravene section 36; or
(b) has aided, abetted, counselled or procured a person to contravene
section 36; or
(c) has induced, or attempted to induce, a person, whether by threats or
promises or otherwise, to contravene section 36; or
(d) has been in any way, directly or indirectly, knowingly concerned in,
or party to, the contravention by a person of section 36; or
(e) has conspired with others to contravene section 36.
(1) For the purposes of this Chapter, the AOC may license a person to use
all, or any one or more, of the protected olympic expressions mentioned in
subsection 24(1) for commercial purposes:
(a) in all circumstances or in specified circumstances; or
(b) during a specified period or without any limitation as to
time.
(2) This section is not intended to affect the capacity of the AOC to
determine the terms and conditions on which a person is licensed, including
terms and conditions relating to the payment of money.
A licence does not authorise the use of a protected olympic expression
for commercial purposes if the use is covered by subsection 30(3).
(1) The AOC is to maintain a Register in which the AOC includes prescribed
particulars of licences.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Internet.
(1) If a person has engaged, is engaging, or is proposing to engage, in
conduct in contravention of section 36, a prescribed court may grant an
injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do
so—requiring the person to do something.
(2) The power of the court to grant an injunction may be
exercised:
(a) whether or not it appears to the court that the person intends to
engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that
kind.
(3) An injunction under this section may only be granted on the
application of the AOC or a licensed user.
(4) An injunction granted under this section on the application of a
person who is a licensed user may only relate to:
(a) a protected olympic expression to which the person’s licence
relates; or
(b) an expression so closely resembling the protected olympic expression
to which the person’s licence relates as is likely to be mistaken, by a
reasonable person, for that expression.
(5) The court may discharge or vary an injunction granted under this
section.
(6) The powers conferred on the court by this section are in addition to,
and not instead of, any other powers of the court, whether conferred by this
Chapter or otherwise.
(1) A prescribed court may grant an interim injunction pending the
determination of an application under section 41.
(2) For the purposes of subsection (1) of this section, a
contravention of section 36 is taken to have caused immediate and
irreparable damage to the applicant.
(1) If, on the application of the AOC, a prescribed court is satisfied
that a person has engaged in conduct constituting a contravention of
section 36, the court may make an order requiring the person:
(a) by such means (including a broadcast or Internet publication) as the
court thinks fit; and
(b) at the person’s own expense; and
(c) at times specified in the order;
to publish advertisements the terms of which are specified in, or are to be
determined in accordance with, the order.
(2) Subsection (1) does not limit section 41.
(3) A court may make an order under subsection (1) whether or not
relief is granted under section 41.
(1) If the AOC or a licensed user suffers loss or damage as a result of
anything done by a person in contravention of section 36, the amount of the
loss or damage may be recovered by action in a prescribed court.
(2) The action must be brought within 3 years after the day on which the
contravention occurred.
(3) The grant of an injunction under section 41 does not prevent the
recovery of loss or damages under this section.
(4) The AOC or a licensed user is not entitled to both:
(a) the recovery of loss or damages under this section; and
(b) an account of profits under section 45;
in respect of the same contravention of section 36.
(1) If, on the application of the AOC or a licensed user, a prescribed
court is satisfied that a person has engaged in conduct in contravention of
section 36, the court may make an order granting relief by way of an
account of profits.
(2) The application must be made within 3 years after the day on which the
contravention occurred.
(3) An order made under this section on the application of a person who is
a licensed user may only relate to:
(a) a protected olympic expression to which the person’s licence
relates; or
(b) an expression so closely resembling the protected olympic expression
to which the person’s licence relates as is likely to be mistaken, by a
reasonable person, for that expression.
(4) A court may make an order under this section whether or not an
injunction is granted under section 41.
(5) The AOC or a licensed user is not entitled to both:
(a) an account of profits under this section; and
(b) the recovery of loss or damages under section 44;
in respect of the same contravention of section 36.
(1) If, on the application of the AOC or a licensed user, a prescribed
court is satisfied that a person has engaged in conduct constituting a
contravention of section 36 in relation to goods, the court may order that
the goods be:
(a) destroyed; or
(b) delivered up to the AOC or to the licensed user, as the case may be;
or
(c) otherwise dealt with in such manner as the court thinks fit.
(2) An order made under this section on the application of a person who is
a licensed user may only relate to:
(a) a protected olympic expression to which the person’s licence
relates; or
(b) an expression so closely resembling the protected olympic expression
to which the person’s licence relates as is likely to be mistaken, by a
reasonable person, for that expression.
(3) A court may make an order under this section whether or not an
injunction is granted under section 41.
(1) A licensed user must not:
(a) make an application for an injunction (other than an interim
injunction) under section 41; or
(b) bring an action for damages under section 44; or
(c) make an application for an order under section 45; or
(d) make an application for an order under section 46;
except with the written consent of the AOC.
(2) If:
(a) a licensed user gives the AOC a written request for consent under
subsection (1); and
(b) the AOC neither gives nor refuses that consent before the end of the
period of 8 days beginning on the day on which the request was given;
the AOC is taken to have given the consent.
(3) Consent under subsection (1) must not be unreasonably
refused.
(1) The remedies provided under this Division are in addition to remedies
provided by any law (whether a law of the Commonwealth or a law of a State or
Territory) that confers any rights or powers on the AOC or a licensed user in
relation to conduct of a kind that constitutes a contravention of
section 36.
(2) The remedies provided under this Division are in addition to the
remedies provided by the Trade Practices Act 1974 in relation to engaging
in conduct that is misleading or deceptive (see section 52 of that Act)
and, in particular, in relation to representations:
(a) that goods or services have sponsorship or approval that they do not
have (see paragraph 53(c) of that Act); or
(b) that a corporation (as defined in that Act) has a sponsorship,
approval or affiliation that it does not have (see paragraph 53(d) of that
Act).
(3) Subsection (2) does not limit subsection (1).
(4) The references in subsection (2) to particular provisions of the
Trade Practices Act 1974 do not imply that other provisions of that Act
do not apply in relation to conduct of a kind that constitutes a contravention
of section 36 of this Act.
In this Division, unless the contrary intention appears:
application period, in relation to seized goods,
means:
(a) if there is only one objector to the importation of the
goods—the period specified in the notice given to the objector under
section 55 or, if that period is extended under subsection 55(5), that
period as so extended; or
(b) if there is more than one objector to the importation of the
goods—the period beginning on the earliest day on which a period specified
in a notice given to an objector under section 55 commences and
ending:
(i) on the last day on which a period specified in such a notice ends;
or
(ii) on the last day on which such a period as extended under subsection
55(5) ends;
whichever is the later.
CEO means the Chief Executive Officer of Customs.
objector, in relation to seized goods, means the person by
whom a notice in force under section 52 in relation to the goods was
given.
officer of Customs has the meaning given by subsection 4(1)
of the Customs Act 1901.
seized goods means goods seized under
section 54.
working day means a day that is not:
(a) a Saturday; or
(b) a Sunday; or
(c) a public holiday in the Australian Capital Territory.
The CEO or an officer of Customs may determine that a person is the owner
of goods for the purposes of paragraph (b) of the definition of
designated owner in section 23 if the person is an owner
(within the meaning of subsection 4(1) of the Customs Act 1901) of the
goods.
The AOC may import goods to which a protected olympic expression has been
applied, so long as the importation does not contravene a law of the
Commonwealth other than this Chapter.
(1) Subject to this section, the AOC or a licensed user may give the CEO a
written notice objecting to the importation, after the day on which the notice
is given, of goods that have applied to them a protected olympic expression that
the designated owner of the goods is not authorised by, or licensed under, this
Chapter to use for commercial purposes in relation to the goods.
(2) A notice:
(a) is to be given together with any prescribed document; and
(b) is to be accompanied by the prescribed fee (if any).
(3) A licensed user may only give a notice in relation to a protected
olympic expression that the person is licensed to use.
(4) A notice given by the AOC or a licensed user may be revoked at any
time by written notice given to the CEO by the person who gave the original
notice.
(5) Unless sooner revoked, a notice ceases to have effect at the end of
the prescribed period. This subsection has effect subject to
subsection (6).
(6) If:
(a) a notice given by a licensed user is not revoked under
subsection (4); and
(b) the licence expires or is revoked;
the notice ceases to have effect on the day on which the licence ceases to
be in force.
(7) A reference in this section to the use of protected olympic
expressions for commercial purposes does not include a reference to use covered
by subsection 30(3).
(1) A licensed user must not give a notice of objection to importation
under section 52 except with the written consent of the AOC.
(2) If:
(a) a licensed user gives the AOC a written request for consent under
subsection (1); and
(b) the AOC neither gives nor refuses that consent before the end of the
period of 8 days beginning on the day on which the request was given;
the AOC is taken to have given the consent.
(3) Consent under subsection (1) must not be unreasonably
refused.
(1) This section applies to goods manufactured outside Australia
that:
(a) are imported into Australia; and
(b) are subject to the control of the Customs within the meaning of the
Customs Act 1901.
(2) If:
(a) goods have had applied to them one or more protected olympic
expressions; and
(b) a notice in force under section 52 relates to the goods;
and
(c) it appears to the CEO that the designated owner is not authorised by,
or licensed under, this Chapter, to use the expressions for commercial purposes
in relation to the goods;
the CEO must seize the goods unless the CEO has no reasonable grounds for
believing that section 36 would be contravened by the use of the
expressions by the designated owner for commercial purposes.
(3) The CEO may refuse to seize the goods unless the CEO has been given by
the objector, or by one or more of the objectors, security in an amount that the
CEO considers sufficient to reimburse the Commonwealth for the reasonable
expenses that may be incurred by the Commonwealth if the goods were
seized.
(4) Goods seized under this section must be kept in a secure place as
directed by the CEO.
(5) A reference in this section to the use of protected olympic
expressions for commercial purposes does not include a reference to use covered
by subsection 30(3).
(1) As soon as practicable after goods are seized under section 54,
the CEO must give the designated owner and each objector, either personally or
by post, a written notice identifying the goods and stating that they have been
seized under section 54.
(2) A notice under subsection (1) that is given to each objector must
also:
(a) specify:
(i) the full name and address of the designated owner of the goods;
and
(ii) any information that the CEO has and that the CEO believes, on
reasonable grounds, to be likely to help the objector, or objectors, to identify
the designated owner; and
(b) state that the goods will be released to the designated owner
unless:
(i) an application for an injunction under section 41 in relation to
the goods is made by the objector, or by one of the objectors, within the period
of 10 working days beginning on a specified day; and
(ii) written notice of the making of the application is given to the CEO
within that period.
(3) The day specified for the purpose of subparagraph (2)(b)(i) must
not be earlier than the day on which the notice is given.
(4) An objector may, by written notice given to the CEO before the end of
the period specified in a notice for the purposes of
subparagraph (2)(b)(i), request that the period be extended.
(5) If:
(a) a request is made in accordance with subsection (4);
and
(b) the CEO is satisfied that it is reasonable that the request be
granted;
the CEO may extend the period by not more than 10 working days.
(1) The designated owner of any seized goods may, at any time before an
objector makes an application for an injunction under section 41 in
relation to the goods, consent to the goods being forfeited to the Commonwealth
by giving a written notice to that effect to the CEO.
(2) If the designated owner gives such a notice, the goods are forfeited
to the Commonwealth and must be disposed of as the CEO directs.
(1) The CEO must release seized goods (other than goods forfeited to the
Commonwealth under section 56) to their designated owner at the end of the
application period unless, within that period, the objector, or one of the
objectors, has:
(a) made an application for an injunction under section 41 in
relation to the goods; and
(b) given to the CEO written notice of the application.
(2) The CEO must also release the seized goods to their designated owner
if, before the end of the application period, the objector, or each of the
objectors, has, by written notice given to the CEO, consented to the release of
the goods.
(3) The CEO may release the seized goods to their designated owner at any
time before the end of the application period if:
(a) the CEO, having regard to information that has come to his or her
knowledge after the goods were seized, does not have reasonable grounds for
believing that section 36 would be contravened by the importation of the
goods; and
(b) the objector has not, or none of the objectors has, made an
application for an injunction under section 41 in relation to the
goods.
Note: In obtaining information for the purposes of this
section, the CEO must comply with Principles 1, 2 and 3 in section 14 of
the Privacy Act 1988.
(1) In this section, a reference to an application for an injunction under
section 41 is a reference to such an application made, in relation to
seized goods, by a person who is an objector in relation to the goods.
(2) A prescribed court in which an application for an injunction under
section 41 is pending:
(a) may, on the application of a person having a sufficient interest in
the subject matter of the application, allow the person to be joined as a
respondent to the application; and
(b) must allow the CEO to appear and be heard.
(3) In addition to any relief that the court may grant apart from this
section, the court may:
(a) at any time, if it thinks it just, order that the seized goods be
released to their designated owner subject to such conditions (if any) as the
court thinks fit; or
(b) order that the seized goods be forfeited to the
Commonwealth.
(4) If:
(a) the court decides that an injunction should not be granted under
section 41; and
(b) the designated owner of the goods, or any other respondent, satisfies
the court that he or she has suffered loss or damage because the goods were
seized;
the court may order the objector to pay to the designated owner or other
respondent compensation, in the amount determined by the court, for any part of
that loss or damage that is attributable to any period beginning on or after the
day on which the application under section 41 was made.
(5) If, at the end of 20 working days beginning on the day on which the
application for an injunction under section 41 was made, there is not in
force an order of the court directed at the CEO preventing the goods from being
released, the CEO must release the goods to their designated owner.
(6) If the court orders that the goods be released, the CEO must, subject
to section 60, comply with the order.
If the court orders under section 58 that goods be forfeited to the
Commonwealth, the goods are to be disposed of as the CEO directs.
Despite anything in this Part, the CEO must not:
(a) release, or dispose of, any seized goods; or
(b) take any action in relation to the goods to give effect to any order
of a court under section 58;
if the CEO is required or allowed to retain control of the goods under any
other law of the Commonwealth.
If security given under subsection 54(3) by the objector or objectors who
gave notice under section 52 is not sufficient to meet the expenses
incurred by the Commonwealth as a result of the action taken by the CEO under
this Division because of the notice, the amount of the difference between those
expenses and the amount of security:
(a) is a debt due by the objector, or by the objectors jointly and
severally, to the Commonwealth; and
(b) may be recovered by action in any court of competent
jurisdiction.
The Commonwealth is not liable for any loss or damage suffered by a
person:
(a) because the CEO seized, or failed to seize, goods under this Division;
or
(b) because of the release of any seized goods.
The regulations may provide for the modification or adaptation of this
Division in its application to:
(a) Christmas Island; or
(b) Cocos (Keeling) Islands; or
(c) Norfolk Island.
(1) If the AOC or a licensed user threatens to make an application, or
bring an action, against a person (the threatened person) on the
ground that the threatened person has engaged, is engaging, or is proposing to
engage in conduct in contravention of section 36, any person aggrieved by
the threat may bring an action in a prescribed court against the AOC or the
licensed user, as the case may be.
(2) In an action under subsection (1), the court may:
(a) make a declaration that the AOC or the licensed user had no grounds
for making the threat; and
(b) grant an injunction restraining the AOC or the licensed user from
continuing to make the threat.
The court may also award damages for loss that the person aggrieved has
suffered as a result of the making of the threat.
(3) An action may not be brought under this section if the person who made
the threat has made an application, or brought an action, under Division 1
against the threatened person in relation to the act, or proposed act, to which
the threat related.
(4) An action under this section may not be continued if the person who
made the threat makes an application, or brings an action, under Division 1
against the threatened person in relation to the act, or proposed act, to which
the threat related.
(5) It is a defence to an action under subsection (1) that the
conduct of the threatened person, in relation to which the threat was made,
constitutes a contravention of section 36.
(1) If the AOC or a licensed user would be entitled to make an
application, or bring an action, against a person for a contravention of
section 36, the AOC, or the licensed user may, in an action under
section 64, make a counterclaim for any relief to which the AOC or the
licensed user would be entitled under Division 1.
(2) The provisions of Divisions 1 and 2 apply as if a counterclaim
were an application or action made or brought by the AOC or a licensed user
under Division 1.
Each of the following courts is a prescribed court for the
purposes of this Chapter:
(a) the Federal Court;
(b) the Supreme Court of a State;
(c) the Supreme Court of the Australian Capital Territory;
(d) the Supreme Court of the Northern Territory;
(e) the Supreme Court of Norfolk Island.
The Federal Court has jurisdiction in relation to all matters arising
under this Chapter.
(1) Each prescribed court (other than the Federal Court) has federal
jurisdiction in relation to all matters arising under this Chapter.
(2) The jurisdiction conferred by subsection (1) on the Supreme Court
of a Territory is conferred to the extent that the Constitution
permits.
(1) A prescribed court in which an application has been made, or an action
brought, under this Chapter may, on the application of a party made at any
stage, by order, transfer the application or action to another prescribed court
having jurisdiction to hear and determine the application or action.
(2) When a court transfers an application or action to another
court:
(a) all relevant documents of record filed in the transferring court must
be sent to the other court by the Registrar or other appropriate officer of the
transferring court; and
(b) the application or action continues in the other court as
if:
(i) it had been started there; and
(ii) all steps taken in the transferring court had been taken in the other
court.
It is the intention of the Parliament that this Chapter is not to apply
to the exclusion of a law of a State or Territory to the extent that the law is
capable of operating concurrently with this Chapter.
Trade marks and designs
(1) This Chapter, so far as it applies in relation to a protected olympic
expression, does not affect rights conferred by law on a person in relation
to:
(a) a trade mark that is registered under the Trade Marks Act 1995;
or
(b) a design that is registered under the Designs Act
1906;
and was so registered immediately before 20 September 2001 in relation
to the expression.
(2) For the purposes of subsection (1), a trade mark is taken to have
been registered under the Trade Marks Act 1995 on the date of
registration (within the meaning of that Act) of the trade mark.
(3) For the purposes of subsection (1), a design is taken to have
been registered under the Designs Act 1906 at the time when the
registration of the design came into force as mentioned in subsection 27A(1) of
that Act.
Passing off
(4) This Chapter, so far as it applies to a protected olympic expression,
does not affect the use of the expression by a person (the first
person) if, immediately before 20 September 2001, the first person
would have been entitled to prevent another person from passing off, by means of
the use of the expression or a similar expression, goods or services as the
goods or services of the first person.
Business names
(5) This Chapter does not apply to the use of a business name in
connection with a business if:
(a) the name is registered in relation to the business under a law of a
State or Territory relating to business names; and
(b) the name was so registered immediately before 20 September 2001
in relation to the business.
Company names
(6) This Chapter does not apply in relation to the use of the name of an
incorporated company if:
(a) the company was in existence immediately before
20 September 2001; and
(b) the company uses the name in connection with a business carried on by
the company; and
(c) the company used the name in connection with the business immediately
before 20 September 2001.
(1) This Chapter has no effect to the extent (if any) to which:
(a) the operation of this Chapter would result in the acquisition of
property from a person otherwise than on just terms; and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution.
(2) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
This Chapter does not apply to the extent (if any) that it would infringe
any doctrine of implied freedom of political communication.
This Chapter has effect in addition to any contract:
(a) that relates to the use of a protected Olympic expression for
commercial purposes; and
(b) to which any of the following is a party:
(i) the IOC;
(ii) the AOC;
(iii) the organising committee for a Summer or Winter Olympic
Games.
(1) This section applies if, before the commencement of this section, the
AOC purported to grant a licence for a particular period ending after that
commencement authorising a person to use all, or any one or more, of the
protected Olympic expressions for commercial purposes.
(2) This Chapter has effect as if the licence had been granted under
section 38 for the part of that period that began after the commencement of
this section.
36 Before section 22
Insert:
37 Section 22
Renumber as section 76.