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1996
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
SYDNEY 2000 GAMES (INDICIA AND
IMAGES) PROTECTION AMENDMENT BILL
1996
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister
for Industry, Science and Tourism,
the Hon John Moore, MP)
78866 Cat. No. 96 5106 3 ISBN 0644 479205
SYDNEY 2000 GAMES (INDICIA AND IMAGES) PROTECTION AMENDMENT BILL 1996
OUTLINE
The Sydney 2000 Games (Indicia and Images )
Protection Amendment Bill 1996 which amends the Sydney 2000 Games (Indicia
and Image) Protection Act 1996 (the Principal Act), has two main
purposes:
1. to enable the Sydney Organising Committee for the Olympic
Games (SOCOG), the Sydney Paralympic Organising Committee (SPOC) and licensed
users to take action against all parties who may be involved in the supply of
goods and services to which protected indicia and images have been applied by an
unauthorised user; and
2. to provide that action may be taken against
those who aid, abet, counsel and procure breaches of the Principal
Act.
The Principal Act is designed to protect the Sydney 2000 Olympic and
Paralympic Games (the Games) against ambush marketing which is the unauthorised
association of businesses with the marketing of an event such as the Sydney
Olympics, without paying for the marketing rights.
The Principal Act
presently provides protection against ambush marketing through the regulation of
the use for commercial purposes of the indicia and images associated with the
Games. For trade in domestically produced goods, the Principal Act as it stands,
only enables action to be taken against the person who applied the indicia and
images to the goods or services. This may make it difficult for action to be
taken against some infringers.
The amendments contained in the Bill will
enable Games organisers and licensed users to take action against retailers,
distributors or other parties in the supply chain rather than having to pursue
through the supply chain the unauthorised person who applied the indicia or
images to the goods or services.
In addition, the amendments will enable
SOCOG, SPOC and licensed users to take action against those who aid, abet,
counsel and procure breaches of the legislation. In other words, it will be
possible to take action against persons whose involvement in the contravention
of the legislation is in the nature of assisting in the unauthorised application
of indicia and images rather than in their direct application.
These
measures greatly improve the operation of the legislation and help ensure the
preservation of the Games marketing revenues. As well as protecting the revenue
of the Games against ambush marketing, they help ensure that the interests of
legitimate retailers are protected from less scrupulous competition. Retailers,
distributors and other parties will need to check to ensure that the person who
applied the indicia or images to the goods or services is licensed. To do this,
they need to check the register of licensed users located at SOCOG’s
office in Sydney or the State Offices of the Australian Industrial Property
Organisation to ensure that the person is entered on the register.
In
preparing the Bill, the Government consulted extensively with the Games
organisers and other interest groups, in particular, retailers. To make it
easier for retailers and others to ensure that the goods they receive have the
indicia or images applied to them by a licensed user, SOCOG proposes to provide
easy access to the register of licensed users of the indicia and images, to
disseminate widely information on the legislation and on who the licensed users
are, and to provide a sophisticated identification system for genuine
products.
In the public awareness campaign, SOCOG will be advertising in
various media, and licensees will be required to advertise in trade catalogues
and similar outlets. Retail and other industry associations have agreed to
cooperate with SOCOG in the dissemination of information so that the public is
aware and understands the legislation as it relates to the licensing of users of
the protected indicia and images.
The provisions contained in this Bill,
together with those in the Principal Act, will cease to operate after
31 December 2000, following the completion of the Games.
With
these amendments, the legislation represents a balanced and workable approach
that will protect the Olympic and Paralympic Games against ambush marketing
without placing an undue burden on business.
FINANCIAL IMPACT
STATEMENT
There will be no additional cost to the Government of
administering this legislation. The Bill will extend the scope of the
legislative protection for Games organisers and licensees against ambush
marketing so that the revenue relied on from these activities may be preserved.
The increased security of the Olympic 2000 indicia and images provided by this
legislation should enhance SOCOG’s and SPOC’s capacity to ensure the
financial viability of the 2000 Games through their joint marketing
program.
NOTES ON INDIVIDUAL CLAUSES
Clause 1 — Short title
1. This clause provides
that the Act may be cited as the Sydney 2000 Games (Indicia and Images)
Protection Amendment Act 1996.
Clause 2 —
Commencement
2. Clause 2 provides for commencement of the Act to be
on receiving the Royal Assent.
Clause 3 —
Schedule(s)
3. This clause amends the Principal Act in accordance
with the applicable items in the Schedule of Amendments of the Principal Act
(the Schedule) and inserts the other items in the Schedule into the Principal
Act.
Sydney 2000 Games (Indicia and Images) Protection Act
1996
Item 1 — Subsection 10(1)
4. Minor
technical amendment designed to remove inconsistencies in references to indicia
and images. The amendment makes it clear that the legislation can apply to
either indicia or images.
Item 2 — Section 11 Use for commercial
purposes
5. Item 2 repeals section 11 in the Principal Act and
inserts a new definition of “use for commercial purposes”. New
section 11 explains the meaning of “use for commercial purposes” as
used throughout the Principal Act. It sets out the two situations in which a
person is said to use Sydney 2000 Games indicia or images for commercial
purposes.
6. New subsection 11(2) sets out the first situation. It
occurs when a person (the first person) causes indicia or images to be
applied to goods or services of the first person in the course of advertising or
any activity that will increase the demand for those goods or services and in a
manner which suggests that the first person is or has been a sponsor of the
Sydney 2000 Olympic, or Paralympic, Games, or both, or is or was providing other
support for the Games. The application of the indicia or images in these
circumstances is “use for commercial purposes” by the first person.
That is, persons who sell or promote their goods or services by using any of the
indicia or images in a way that would be understood reasonably as suggesting
that they are claiming sponsorship of or are providing other support for the
Games would be using them for commercial purposes.
7. New subsection
11(3) sets out the second situation. It occurs when a person (the first
person), who is not SOCOG, SPOC or a licensed user, causes indicia or images
to be applied to goods or services of the first person in the course of
advertising or any activity that will increase the demand for those goods or
services and in a manner which suggests that the first person is or has been a
sponsor of the Sydney 2000 Olympic, or Paralympic, Games, or both, or is or was
providing other support for the Games and when another person (the
second person) supplies, or offers to supply those goods or services, or
exposes those goods for supply by themself, or keeps the goods for supply by
themself or another person. In these circumstances, the supply, offer, exposure
or keeping, as the case may be, is “use for commercial purposes” by
the second person. That is, if the indicia or images are applied to the goods
by an unauthorised person, the supply, offer, exposure or keeping of the goods,
by another person is “use for commercial purposes” by that second
person e.g., a retailer, distributor or other middleman dealing in goods or
services to which unauthorised indicia or images have been applied will be using
those indicia or images for commercial purposes.
8. In practice,
retailers, distributors and other parties need only check the register of
licensed users located at SOCOG’s office in Sydney or the State Offices of
the Australian Industrial Property Organisation to ascertain whether or not the
person who has applied the indicia or images to the goods or services is entered
on the register. Persons entered on the register are licensed users. Persons
not entered on the register do not have the status of licensed users for the
purposes of the Principal Act (section 19).
9. New subsection 11(4)
provides a definition of “supply”.
Item 3 —
Subsection 12(1)
10. See comments on Item 1.
Item 4 —
Subsection 12(4)
11. See comments on Item 1.
Item 5 —
13A Persons involved in contraventions of section 12
12. Item 5
inserts a new section 13A after section 13 in the Principal Act. Subsections
(a), (b), (c), (d) and (e) list the various ways a person is taken to have
contravened section 12. That is a person is taken to have used Sydney 2000
Games indicia and images for commercial purposes if the person has attempted to
contravene section 12 or has aided, abetted, counselled or procured a person to
contravene section 12, or has induced, or attempted to induce a person whether
by threats, or promises, or otherwise, to contravene section 12 or has in any
way, directly or indirectly, knowingly concerned in, or party to, the
contravention by a person of section 12 or has conspired with others to
contravene section 12.
13. The insertion of this section will enable
SOCOG, SPOC and licensed users to take action against persons whose involvement
in contravention of the legislation is in the nature of assisting in the
unauthorised application of indicia and images rather than in their direct
application.
Item 6 — 14A Limitation on
licence
14. Item 6 inserts a new section 14A after section 14 in the
Principal Act. This amendment is consequential on the enactment of the new
definition of “use for commercial purposes” as set out in subsection
11(3) (inserted by Item 2) and ensures that SOCOG and SPOC do not have to
license such a use.
Item 7 — Paragraph
17(1)(b)
15. See comments on Item 1.
Item 8 —
Subsection 19(1)
16. See comments on Item 1.
Item 9 —
Subsection 25(1)
17. See comments on Item 1.
Item 10
— Subsection 25(1)
18. This amendment is consequential on the
enactment of the new definition of “use for commercial purposes” as
set out in subsections 11(2) and 11(3) (inserted by Item 2).
Item 11
— Subsection 31(1)
19. See comments on Item 1.
Item
12 — Subsection 31(2)
20. See comments on Item
1.
Item 13 — Subsection 32(5)
21. See comments on
Item 1.
Item 14 — Subsection 32(8)
22. This amendment
is consequential on the enactment of new section 11 (inserted by Item 2). The
amendment preserves the status quo and ensures that section 32 works as
originally intended.
23. New section 11 defines 2 types of
“use”: subsection 11(2) use and subsection 11(3) use. In the
absence of the amendment, it is arguable that section 32 would apply to
both types of use. Since subsection 11(3) use cannot be licensed (see
new section 14A), a licensed user can never be said to be “authorised by,
or licensed under, this Act” to “use” the indicia or images as
defined by subsection 11(3).
24. The test of “use” in section
32 is intended to be a test relating to subsection 11(2) use. If it were a test
that applied both to subsection 11(2) use and subsection 11(3) use, then it is
arguable that section 32 could have the following unintended consequence: a
section 32 notice could be given objecting to the importation of goods that have
applied to them Sydney 2000 Games indicia or images, even if the subsection
11(2) use was licensed.
25. The amendment ensures that section 32 can
operate without any such unintended consequence.
Item 15 —
Subsection 33(5)
26. This amendment is consequential on the enactment
of new section 11 (inserted by Item 2). The amendment preserves the status quo
and ensures that section 33 works as originally intended.
27. New section
11 defines 2 types of “use”: subsection 11(2) use and subsection
11(3) use. In the absence of the amendment, it is arguable that section 33
would apply to both types of use. Since subsection 11(3) use cannot be
licensed (see new section 14A), a licensed user can never be said to be
“authorised by, or licensed under, this Act” to “use”
the indicia or images as defined by subsection 11(3).
28. The test of
“use” in section 33 is intended to be a test relating to subsection
11(2) use. If it were a test that applied both to subsection 11(2) use and
subsection 11(3) use, then it is arguable that section 33 could have the
following unintended consequence: the Chief Executive Officer of Customs would
be required to seize imported goods that have had applied to them Sydney 2000
Games indicia or images, even if the subsection 11(2) use was
licensed.
29. The amendment ensures that section 33 can operate without
any such unintended consequence.
Item 16 — Subsection
43(4)
30. This amendment is consequential on the enactment of new
section 13A (inserted by Item 5) and insures that injunctions can be obtained
against persons who under section 13A are treated as being involved in
contravention of section 12.
Item 17 — Subsection
43(5)
31. See comments on Item 16.
Item 18 —
Subsection 43(6)
32. See comments on Item 16.
Item 19
— Subsection 43(9)
33. See comments on Item 16.
Item
20 — Subsection 43(9)
34. See comments on Item
16.
Item 21 — Transitional—pre-commencement
licences
35. Safeguarding measure designed to ensure amendments do
not affect continuity of existing licences.