By Mark Armstrong, Senior Associate and Matt Hansen, Partner

17 June 2024

It’s that time of year(s) again!  The glorious double up of two of the most exciting sporting events occurring in the same 12 months: the 2024 UEFA Euro Football Championship kicked off last Saturday morning and the 2024 Summer Olympics in Paris begins in late July.  While Olympic season often brings with it a guarantee of conversations around what even constitutes a sport (the 1984, ’88 and ’92 Olympics had solo synchronised swimming) what constitutes acceptable marketing tactics is less up for debate when it comes to falsely affiliating with an internationally renowned event or a national sporting icon.  While the rules for the dressage or this year’s wildcard sport, breaking, may be less apparent to those outside the industry, there are well established legal principles that prohibit companies from affiliating themselves without permission from the relevant entities.  So you’d better hold your horses or you could be in the crosshairs of a major sports entity for legal action.  Read on as we outline how to keep the target off your back in light of the upcoming sporting festivities so you can avoid looking like a prize fool.

People like sports!  Let’s show everyone (at this exact point in time) how much we also love sports!

A love of sports is all well and good, however, if your business has no relation to the Olympics, Euro or any national sporting team, your safest bet would be to hide your love away.  Only a select lucky few are permitted to legally show off that they are an official sponsor, whereas the majority of those without authorised affiliations can only dream of being bestowed with such an honour.  Attempts by the non-sponsored to jump on the bandwagon during major sporting events is commonly known as ‘ambush marketing’ and advertisers wishing to do so run the risk of finding themselves in serious legal issues.

Any major sporting event, body or team carries with it an inherent valuable reputation and any attempts by a business to affiliate with or take a free ride on the coattails of this reputation exposes the business to a legal claim of ‘passing off’ and/or other statutory claims under the Australian Consumer Law including misleading and deceptive conduct, and false or misleading representations that a business has a sponsorship, approval or affiliation.  Accordingly, references by a business (whether direct or indirect) can amount to an implied sponsorship and where no relation exists, this could lead to legal issues.  For instance, updating your product packaging at the time of the Olympics with green and gold colouring and a supportive message such as “Go Tillies!” is a blatant attempt to imply either a direct connection to the Australian women’s national football team (the Matildas), or an indirect connection to the Australian Olympic Committee (AOC) or the International Olympic Committee (IOC).  Without approval from any of these entities to show your support in a commercial context, material of this nature would likely result in legal action.  These entities have lucrative sponsorship arrangements in place with carefully selected sponsors who have parted with substantial sponsorship fees, and due to how commercially valuable it is to be an official sponsor of such globally watched events, these deals are fiercely protected.  In short, if you are not an official sponsor it is ill advised to do anything that implies that you are.

Surely we can still show our support with a cheeky little Olympic Rings, or general messaging such as, “All the best to our Aussies at the Olympics”, right?

Wrong!  Several Olympic devices, the main Euro2024 logo, as well as various football team crests are protected by both trade mark and copyright law and therefore any reproduction could escalate to a claim of infringement.  Not only this, specific words, including, ‘Olympic’, ‘Olympics’, ‘Olympic Games’, ‘Olympiad’ and ‘Olympiads’ are all protected expressions under the Olympic Insignia Protection Act 1987 (Cth) and without permission from the IOC, these expressions cannot be used for any commercial purposes or in association with any goods or services without the IOC’s permission.  Further, even less explicit wording, such as references to ‘the Games’ or ‘Euros’ could, in the wrong context present dangers of passing off or false affiliation.  Any sporting related messaging at this time will be under the microscope of the various sporting bodies who are notoriously aggressive in enforcing their rights.

Is there any way that we can get involved in the festivities?

In light of the above, there are several obstacles in place to specifically protect the rights of various sporting entities and their sponsors.  The law does not specifically prohibit all forms of ambush marketing, however the context of the advertising is key and extreme caution must be exercised around this time.  For example, if a German beer hall hangs German flag bunting and soccer balls from the ceiling during Euro, this is unlikely to attract legal action from UEFA or the German Football Association.  However, if the beer hall uploads posts to their Instagram page noting that they will be showing all of Germany’s Euro2024 games live and the image in the post features the crest of the German national team (which is a registered trade mark in Australia), this presents a solid risk of a challenge on both trade mark and passing off or false affiliation grounds.  Given that advertising around this time is so heavily scrutinised to ensure that the investment to acquire sponsorship rights is worthwhile, if there is any doubt as to whether your advertising material will go the distance or fall at the final hurdle, it definitely pays to seek legal advice to ensure your materials are watertight.

What if we are not an Olympic advertising partner but we sponsor an individual Olympic athlete? Can we support them personally or congratulate them in our advertising?

Not so fast! There are very strict rules around how Olympic participants can be used in advertising, by both Olympic advertising partners and non-partners, known as the the “Key Principles for the use of Participants’ Images for Advertising”, pursuant to Rule 40 of the Olympic Charter. These rules are enforced directly on the participants themselves so brands that do sponsor an athlete, but are NOT official Olympics sponsors, are still subject to strict controls which need to be adhered to in order to protect the athletes themselves from sanction from the Olympic Committee.

Importantly, non-partner brands that sponsor Olympics participants need to be aware that they are not permitted to advertise their affiliation with the participant during a blackout Olympics advertising period, which is between 18 July and 13 August. Any advertising outside this period by a non-partner brand featuring the Olympic participant that they sponsor is permitted, provided the advertising contains no Olympic properties. So for example, if your brand sponsors an athlete that qualifies for the Olympics, you could either congratulate them for “making it to Paris” or “Going for Gold” prior to 18 July, or congratulate them for their performance after 13 August, but during this blackout period, only official Olympic partners are permitted to advertise in relation to the Olympics.

The only exception allowed during the blackout by non-partner brands who sponsor an athlete is for “generic advertising” featuring the athlete, but in order to qualify as “generic advertising”, the advertisement must not contain any Olympic link or reference or property at all, and must have been in market for at least 90 days prior to the commencement of the black out period (i.e. prior to 18 April).

The main takeaway here is, unless you are an official Olympic partner brand, you cannot reference, support or congratulate an athlete or team involved in the Olympics between 18 July and 13 August, even if you do have an association with the athlete. Failure to do so might get them in trouble with the Olympic Committee, and have a negative flow on effect including potential contractual breach and reputational damage.

So what should we keep in mind?

The key takeaways from the above are:

  1. Only official sponsors can represent themselves as being such and attempts to align your brand with a major sporting event or an entity or participant involved, could result in legal action;
  2. Olympic designs and specific Olympic words, as well as other devices are protected by various pieces of legislation and can only be used with express permission;
  3. Sports related advertising in times during and adjacent to major sporting events are carefully examined by official rightsholders, so if you are unsure if your materials will be acceptable, seek legal advice before publication so that any potential issues can be addressed.

 Contact us

We understand that finding the right balance between an advertisement that falls foul or just stays within its lane is not always straightforward.  If you are developing sports advertising in light of these exciting events and would like further information on the above or advice on specific pieces, please contact one of our experts below.

Mark Armstrong Matt Hansen
(02) 8935 8809 (02) 8935 8803
[email protected] [email protected]

 

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