Australian Olympic Committee loses fight to stop Telstra advertising Olympic links with Seven
The Australian Olympic Committee has lost its fight to stop Telstra running ads promoting its sponsorship of the Seven Network’s Olympics app in a shock judgement in the Federal Court this afternoon.
The AOC launched the case against the Telstra campaign two weeks ago after it began promoting its sponsorship of Seven’s Olympics app, saying that Telstra was illegally using protected Olympic phrases and trying to suggest it remained a sponsor of the Australian Olympic team a year after it ended its relationship with the AOC.
The AOC said the use of Peter Allen’s hit ‘I Go to Rio’ in the ads was aimed at misleading the public into thinking Telstra continued to be associated with the Games.
However, Telstra had argued that it had not used any words or phrases protected under the the Olympic Insignia Protection Act (IOP) which had been brought in under pressure from the AOC and official Olympic sponsors to prevent marketing ambushes.
In the ruling, Justice Michael Wigney said Telstra “had to walk a fine line” in linking its brand with Seven and the Olympics broadcasts.
In a statement, Telstra said it welcomed the ruling. “We are pleased the court recognised that our marketing simply promotes our commercial arrangement with the Seven Network. We are disappointed that the AOC suggested otherwise,” the statement said.
“We now look forward to letting our customers know how they can get free access to 36 channels of premium content on the ‘Olympics on 7’ Seven app.”
Seven also welcomed the decision which potentially threatened how it would be able to promote the app during the Games.
“Seven welcomes the Federal Court’s decision today, which dismissed the application to stop Telstra’s commercials promoting Seven’s ‘Olympics on 7’ app,” the statement said.
“Telstra’s mobile customers will get free premium access to the ‘Olympics on 7’ app – a great way of showcasing this revolutionary development, which is designed to deliver maximum coverage of the Olympics to Australians on all platforms.”
In handing down his judgement, Justice Michael Wigney said the AOC had not demonstrated that “any of the individual advertisements, marketing or promotions, or Telstra’s overall ‘Go to Rio’ campaign conveyed a misleading or deceptive representation, or involved misleading or deceptive conduct”.
In a lengthy judgement running to 41 pages, Justice Wigney said the main facts of what was contained in the ads and where they ran was not in dispute.
“The only real factual issue concerns whether the ‘supreme’ governing body of the ‘Olympic Movement’ – the International Olympic Committee – had effectively approved some of the terminology employed by Telstra in its campaign,” Wigney wrote.
“Ultimately, however, the only real controversy is the scope and effect of the IOC approvals.”
Examining the reasons for the AOC taking the action, he noted that both the IOC and AOC “earn significant revenue” from sponsorship and licensing arrangements.
“Sponsorship arrangements entered into by the AOC almost invariably include the grant of a licence to use Olympic designations or Olympic properties, including expressions such as ‘Olympic’, ‘Olympics’ and Olympic Games”.
He noted that Telstra had been a sponsor of the Australian Olympic Team “for many years” and that through that sponsorship it had been granted the rights to use protected Olympic properties.
He said that Seven’s deal with the IOC had granted the broadcaster specific rights and it could pass on such rights to sponsors.
“Seven was not permitted, however, to grant any of its broadcast sponsors the right to use Olympic properties … Seven’s broadcast sponsors were, however, authorised to use such phrases as ‘[Seven’s] Olympic Games telecast is made possible/brought to you by [Seven’s] telecast sponsors/partners.”
Under the terms sheet agreed to by Telstra in its sponsorship of the app Seven could seek IOC approval for such material.
“It is tolerably clear from these provisions … that Telstra must have been well aware that there were limits or restrictions in relation to advertising, marketing and promotion of the Olympics on 7 app,” the judgement said.
“In particular, Telstra must have been aware that its advertisements, marketing and promotions could not present or convey the impression that it was an official sponsor or affiliated with the Rio Games or the IOC or AOC, at least without consent of the IOC.”
Evidence presented during an earlier hearing had revealed that the marketing brief said that Telstra wanted to “use the partnership with Channel 7 to stand out in the malaise of Olympic sponsors – when we’re not an Olympic sponsor (yet our major competitor is).”
The judgement highlighted: “In short, Telstra was well aware that, in exploiting its commercial arrangements with Seven it had to walk a fine line”.
“There was essentially no dispute that Telstra applied Olympic expressions to its services within the meaning of … the IOP Act.
“The real question is whether, in each case, the application of the expression or expressions ‘to a reasonable person, would suggest that [Telstra] is or was a sponsor of, or is or was a provider of sponsorship-like support for’, relevantly, the AOC, IOC, the Rio Olympic Games or the Australian Olympic Team.”
Addressing the issue of the ads, he said that while the Games in Rio provided a “broad theme” for the ad, it did not include any reference to the Olympic Team, IOC or AOC and did not include any current or former Olympic athletes.
He described the original ad broadcast by Telstra was “perhaps borderline” but said the ads did ultimately not overstep the mark.
He also noted evidence submitted by the AOC that Telstra’s own marketing brief sought to associate the brand with the Olympics.
But he said it did not go as far as to suggest a “sponsorship-like” relationship with the Olympics.
“Telstra well understood that because it was not a sponsor, there were limits to what it could say or imply.”
Concluding his judgement, Justice Wigney said that if using if using ‘I Go to Rio’ was tantamount to ambushing the Olympics the public would be “heartily sick” of the song by the end of the Games.
“There again could be no doubt that Telstra intended to, and may well have succeeded in capitalising or exploiting, in a marketing sense, the forthcoming Rio Olympic Games,” he said.
“It did so, however, by effectively promoting its sponsorship arrangement with Seven in relationship to Seven’s Olympic broadcast.
“The AOC has not demonstrated that any of the individual Telstra advertisements or promotions, or Telstra’s overall ‘Go to Rio’ campaign, conveyed a misleading or deceptive representation, or deceptive conduct.”
I think line 3
the Seven was illegally using protected Olympic phrases and trying to
Should read
that Telstra was illegally….
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Hi Stuart,
Thanks for the heads-up, we have fixed that up.
Cheers,
Miranda – Mumbrella
Why is this a “shock” Simon? Did you have contrary legal advice? Telstra is lawyered to the gunwhales. They would have gone over all comms with a fine tooth comb. The Olympic movement doesn’t have unlimited power to ringfence its IP. Telstra has sponsored the telecast and is entitled to publicise that involvement.
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