09 Nov 2017
Jumping another hurdle: the Full Federal Court maintains the fine line between using Olympic themes and ambush marketing
By Mary Still, Sumer Dayal
A prominent and clearly worded disclaimer in the advertisements could well protect against claims of ambush marketing.
In an important decision on the tricky line between legitimate advertising and ambush marketing, the Full Federal Court has dismissed the appeal lodged by the Australian Olympic Committee (AOC) against the primary judgment which had found that Telstra's "I Go to Rio" ad campaign used for the 2016 Rio Olympic Games did not amount to ambush marketing (Australian Olympic Committee, Inc v Telstra Corporation Limited  FCAFC 165).
What was the case about?
The case concerned Telstra's advertising campaign to promote its premium access to Seven's "Olympics on 7" viewing app for Telstra mobile customers. Seven's app streamed live events from the Rio Olympic Games. Telstra's ads (through print, online, and televisions commercials) showed customers using the app to stream Olympic sports and, at times, depicted individuals participating in Olympic sporting activities. Telstra did not have any sponsor or sponsor-like relationship with the Olympic Games in relation to the Rio Games, although it had been a sponsor of previous Olympic Games.
As in the primary judgment, the central question in the appeal was whether, on the balance of probabilities, Telstra’s advertisements suggested to a reasonable person that Telstra was a sponsor of, or provided sponsor-like support to, bodies and teams associated with the Rio Olympic Games.
What were the key findings?
A core theme of the judgment was that the Court's role on appeal was not a "parsing exercise" that required "overzealous analysis" of the primary judgment. The Court found that this case was one where reasonable minds could differ and arrive at different outcomes. In this case, the Court found that the primary judge's views on the effect of the Telstra advertisements and representations, and the suggestions that they conveyed, "should be given considerable weight unless those views are shown to be affected by some relevant error of law or fact".
On that basis, the Court considered the following issues:
Did Telstra's ads evoke a sponsorship-like relationship with a relevant Olympic body or team? The Court found that Justice Wigney had considered the advertisements, both in detail and in a general sense, in determining whether the ads infringed the Olympic Insignia Protection Act 1987 (Cth) (OIP Act) claim and the Australian Consumer Law (ACL) claims. The Court found that it was open to Justice Wigney to conclude that the advertisements did not infringe the OIP Act or the ACL.
Was sufficient weight given to the finding that Telstra's ad campaign intended to convey an association with the Olympics? The Court found that the weight to be given to a party's intention to employ a protected Olympic expression will vary. Such an intention is one piece of evidence to be assessed together with other available evidence. Telstra's marketing brief was considered closely and importance was placed on statements such as "[The creative idea needs to] : … be able to be executed by Ch 7 and brought to life utilising our entitlements without implying any official association with the Olympics themselves".
Was excessive weight given to Telstra's clarification statement in the final few seconds of the Rio TVCs and in other advertisements that Telstra was Seven's technology partner? The Court found that the primary judge was correct in assessing the advertisements as a whole, having regard to the likely perception of viewers, and the impact of the clarification statement in the assessment of the claims.
Was too little weight given to focus group evidence? The Court agreed with Justice Wigney's conclusions that the focus group evidence:
- represented a very small sample size of interviewees;
- was unclear about what questions, advertisements and other information were provided to the interviewees; and
- was unclear about what assumptions the interviewees were asked to make.
In such circumstances, the Court found that the low weight given to the evidence was justified.
Was Telstra's disclaimer in the Rio TVC sufficient to erase any impression of sponsor / sponsorship-like support? As the Court upheld Justice Wigney's finding that the Rio TVC did not infringe the OIP Act or the ACL, it followed that the disclaimer, and consideration of its impact, was unnecessary.
Any lessons for advertising global events?
The case demonstrates the fine line that exists between an ad that uses Olympic themes and one that amounts to ambush marketing. Indeed, the Court acknowledged that Telstra tried to get as far as it lawfully could to imply a relationship with the Rio Olympic Games without breaching the OIP Act or the ACL.
The Court noted that cases such as this are ones where reasonable minds can differ and arrive at a different outcome. But a prominent and clearly worded disclaimer in the advertisements could well protect against claims of ambush marketing.