AOC loses court battle over Telstra Olympics ads

The Full Federal Court has handed down its decision in favour of Telstra, ending a case that began prior to the 2016 Rio Olympic Games.

The Full Federal Court of Australia has ruled in favour of Telstra in the case brought against its "I Go To Rio" marketing campaign in 2016 by the Australian Olympic Committee (AOC).

Under a unanimous decision by Justices Greenwood, Nicholas, and Burley, the appeal was dismissed, with the AOC ordered to pay Telstra's costs.

The Federal Court had originally decided in Telstra's favour back in June 2016, when Justice Wigney dismissed the application by the AOC to get Telstra to halt its marketing campaign during the lead-up to and throughout the Rio Olympic Games.

During the original trial, the AOC had argued that Telstra contravened both the Olympic Insignia Protection Act (OIPA) and Australian Consumer Law (ACL) through its marketing campaign, as it did not have an AOC licence to advertise about the Olympic Games.

According to the AOC, the development of Telstra's advertising campaign and the campaign itself breached the legislation in an effort to gain customers by using a "back door" for commercial gain without paying for association with the AOC -- the telco licence had been bought by Optus.

"It's a very extensive, no doubt extremely well thought out, very extensive advertising campaign, which a significant part extent of it is ... trading off what's about to happen in a few weeks' time, bearing in mind what the Olympics are about, how they resonate with the Australian population and millions of people in the world, and the fact that Telstra was a sponsor I think from 1990 until 2012," the AOC argued.

"[Telstra is] no longer a sponsor with the AOC, because it's been replaced by Optus."

The AOC had claimed that Telstra was capitalising off its partnership with official Australian Olympics broadcaster Seven Network as a launch pad for its own rebranding into a technology company.

Telstra had argued that it was Seven's right to broadcast the Olympics on the "ever-expanding range of technologies" available to it, including Telstra's devices and services.

"Telstra is sponsoring Seven's coverage, Telstra is sponsoring Seven's 'Olympics on Seven' app, Telstra has arrangements with Seven to be designated as the official technology partner of Seven's coverage, and there's nothing that's in there that's untrue," counsel representing Telstra said.

After initially being contacted by the AOC, Telstra's ads also carried explicit disclaimers that it was Seven's coverage, not Telstra's.

"The marketing material does not clearly show an intention on the part of Telstra to suggest that it had a sponsorship-like relationship with the Olympics," Wigney J said in his decision, concluding that Telstra had not breached the OIPA or the ACL.

"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."

The AOC then appealed the decision, earlier this year arguing that Telstra had engaged in "ambush marketing" by associating itself with the Olympics brand.

Counsel for the AOC Tony Bannon SC said Telstra had used a "protected Olympic expression" demonstrating "sponsorship-like" association with the Olympic Games without purchasing a licence from the AOC as required under the OIPA.

"A key element in understanding the primary judge's error in approach -- and the overall error in conclusion -- is the recognition that suggesting you are a supporter of the Olympics and teams is brand advantageous," Bannon said.

"Telstra is not tying itself to the Seven brand, but the Olympics brand," he added, arguing that allowing Telstra to engage in such practices would "diminish the value of the licence".

"To extract maximum revenue from a [buyer] such as Optus, it needs to be able to satisfy Optus and, going forward, any future [buyers] that the exclusive rights they [AOC] give them will not be detracted from in the way we say Telstra has done and not end up in a position, in a bidding debate, with the bidder saying 'well that's interesting but look what Telstra was allowed to do in the last occasion', hence diminishing the value of the licence," Bannon said.

Counsel for Telstra, Anthony McGrath SC, again argued that whenever the protected Olympic expression was used in advertising, it was "closely tied" to Seven and the Olympics by Seven app, and that consumers wouldn't reasonably deduce otherwise.

"It's not enough to say there's an association with the games, it's not generalised support ... every single use of 'Olympics' is not the use of Olympics at large. It is always tied to the notion of Seven's Olympic games coverage or the Olympics on Seven app," McGrath said.

"The only sponsorship arrangement that's being reasonably suggested here is one of Telstra's sponsorship of Seven's coverage, of partnering with Seven, not being in a generalised sense an Olympic sponsor."

PREVIOUS AND RELATED COVERAGE

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