Australian Olympic Committee, Inc. v Telstra Corporation Limited [2016] FCA 857

Australian Olympic Committee, Inc. v Telstra Corporation Limited [2016] FCA 857

Australian Olympic Committee, Inc. v Telstra Corporation Limited [2016] FCA 857

Originally published in World Trademark Review

This case concerns action brought by Australian Olympic Committee (AOC) against Telstra in respect of certain television advertisements and internet postings relating to broadcasts of the coverage of the Rio Olympics by television Channel Seven and the sponsorship by Telstra of those broadcasts and internet rebroadcasts.

AOC is the Australian representative of the International Olympic Committee, Telstra is Australia’s largest telecommunications company and Channel Seven is a national television broadcaster.  Channel Seven acquired from AOC the exclusive rights to the broadcast in Australia of the Olympic events.  Telstra was not an official sponsor of the AOC or any Olympic body but it was a sponsor or “partner” of Channel Seven’s coverage of the Games.  Under Channel Seven’s Agreement with Telstra Channel Seven provided access to Channel Seven’s “Olympics on 7” App to Telstra’s subscribers for viewing on digital devices such as tablets and smartphones and Telstra was permitted to advertise and promote the App and the premium access it provided.

There were a number of versions and iterations of the Telstra advertisements but essentially they included music from Peter Allen’s song “I go to Rio”, the expression “Go to Rio with the ‘Olympics on 7 App'”, images of persons engaging in sporting activities and the words “Seven’s Olympic Games Broadcast is proudly supported by Seven’s official technology partner, Telstra”.  The persons depicted were not Olympic athletes, for example, one showed an elderly gentleman standing in a swimming pool holding a smartphone.  The advertisements concluded with a disclaimer stating that “Telstra is not an official sponsor of the Olympic Games, any Olympic Committees or teams”.

AOC brought action against Telstra alleging that the advertisements were misleading and deceptive representations that Telstra was a sponsor of the Olympics contrary to Sections 18 and 29 of the Australian Consumer Law (ACL) and were in breach of Section 36 of the Olympic Insignia Protection Act (OIP Act).  That Section provides that a person “must not use a protected Olympic expression” for commercial purposes” unless the person is licensed by AOC.  The words “Olympic”, “Olympics” and “Olympic Games” are protected Olympic expressions.  Section 30(2) provides that an expression is used for commercial purposes if “…the application, to a reasonable person, would suggest that the … person is or was a sponsor of” an Olympic Organisation, event, team or athlete.  The Court concluded that standard had not been met by any of the Telstra advertisements or promotions.  Specifically, in relation to one version of the promotion, the Court noted that it is made clear that it refers to Seven’s Olympic broadcast and Seven’s App, the disclaimer appears in relatively prominent script for the majority of the duration of the advertisement and in the context of the advertisement “Telstra’s sponsorship – like support is to Seven, not any Olympic body”.

The Court concluded that:
“The AOC has not proved, on the balance of probabilities, that Telstra contravened s 36 of the OIP Act.  None of the advertisements, videos, catalogues, emails or online materials, or other marketing or promotional materials that employ the Olympic expressions would suggest to a reasonable person, that Telstra is or was a sponsor of, or is or was the provider of, sponsorship-like support to any relevant Olympic body.”  

In relation to the claim under the Australian Consumer Law, the Court found that: 
“for essentially the same reasons as those given in relation to the OIP Act claim, the AOC has failed to demonstrate, to the requisite standard, that Telstra’s conduct in publishing or disseminating the relevant advertisements, marketing and promotions was misleading or deceptive.  Equally, it has failed to prove that the advertisements, marketing or promotions conveyed the alleged representation concerning sponsorship by or affiliation with an Olympic body or bodies.  That is so whether the advertisements, marketing or promotions are viewed individually or collectively.”

AOC has appealed the decision to the Full Court of the Federal Court.