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Olympic Insignia Protection Amendment Bill 1993



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House: Senate

Portfolio: Industry, Technology and Regional Development

Commencement Date: On Royal Assent

Purpose

The Bill amends the Olympic Insignia Protection Act 1987 (the Act) to provide increased protection against unauthorised commercial exploitation of the olympic insignia.

Background

In 1990, the Australian Olympic Federation changed its name to the Australian Olympic Committee (the Committee). The Olympic Insignia Protection Amendment Bill 1993 (the Bill) amends references to this organisation in the Act.

Of more importance are the changes to the protection offered by the Bill against so- called "ambush marketing". Instances of products being sold, which illegally used the olympic logo, occurred shortly after Sydney was announced as the host city for the 2000 Olympics 1.

Problems seem to be associated mainly with detection of offenders, with reports that the Committee had hired private detectives to assist, as the police were not interested because no criminal offence was being committed 2. The Bill does not address these practical problems but does widen the range of designs which will be protected and attempts to deter potential offenders by directing their attention to the remedies available against them under the Trade Practices Act 1974 (TPA).

Neither the Act nor the Bill attempt to prohibit the use of the words "olympic" or" olympiad". According to media reports 3, calls have been made by both the Australian Olympic Committee and the Sydney Organising Committee for such a prohibition. The Government, however, believes that existing use of these words as trade marks, brand names and business names should not be affected 4.

The Government decision not to attempt to prohibit the use of these words should also be seen in the light of the High Court decision in Davies v Commonwealth 5. In this case a provision of the Australian Bicentennial Authority Act 1980, which purported to prohibit the use of a number of words and expressions was challenged. The Court unanimously found that the use of the expression in dispute, "200 years", could not be validly restricted by the Act. The Court held that the expression was a common one which did not distinguish any particular goods and services. It could therefore not be supported by the trade marks power [s. 51(xxviii)] of the Constitution, nor could any other head of power support it. The Court did not determine the validity of other words purported to be restricted as to usage by the Act, but it is possible that an attempt to restrict the use of the word "olympic" could also be successfully challenged.

Main Provisions

Clause 3 of the Bill amends the definitions section of the Act. Several definitions are extended bringing under the protection of the Bill:

* the olympic motto expressed in English as "faster, higher, stronger"; and

* a registered torch and flame design;

The protection period for a registered torch and flame design for a particular Summer or Winter Olympic Games will be the period starting when the design is registered, or on the 1 January that is at least 3 years but less than 4 years before the opening of those Games, whichever is the later. The protection period ends on the 30 December after the closing of those Olympic Games.

The Bill proposes a definition of "olympic artistic work" which includes a prescribed olympic torch and flame design (under proposed section 2A), or an artistic work that incorporates either the olympic symbol or a prescribed torch and flame design.

Clause 4 inserts a proposed new section 2A which allows for the prescription of a single artistic work of an olympic torch and flame for a particular Olympic Games. Such a regulation may only be made where the Committee is the owner of the copyright of the relevant work.

Clause 5 proposes the repeal and replacement of section 6 of the Act which deals with ownership of the olympic symbol. The Committee is taken to be the owner of the design of the symbol, and any design registered under the Act before the commencement of this Bill.

Clause 6 proposes to add subsection 8(9), which provides that in relation to an infringement of the monopoly in a protected design, a design may be a fraudulent or obvious imitation of a registered torch and flame design, even if it does not incorporate a prescribed olympic torch and flame.

Clause 7 proposes to insert new section 9A. The section provides that remedies under the Act are in addition to those provided by the TPA. The section is designed to draw attention to the TPA remedies, especially those relating to misrepresentations about sponsorship.

Clause 10 proposes to insert a new section 11A which requires the Registrar, on application from the Committee, to reduce the protection period of a registered torch and flame design.

Clauses 8, 9, 11, 12, 13 and 14 propose minor technical changes and consequential amendments relating to the proposed addition to the Act of registered flame and torch designs.

Clause 15 proposes to amend section 20 which preserves existing rights conferred by the Trade Marks Act 1955 and the Designs Act 1906. Subsection 20(2) provides that the Act does not affect the use of a symbol on or after a relevant date, where before this date a person would have been entitled to prevent another person from passing off goods or services as those of the first- mentioned person.

The relevant date is inserted by proposed subsection 20(2A) and is each of: the dates of commencement of the Act and the Bill; and the date of registration of a registered torch and flame design.

Clause 16 provides that further amendments are contained in the Schedule. These replace all references to the "Federation" with "Committee".

Endnotes

1. The Australian, 6 October 1993, and The Financial Review, 21 October 1993.

2. Op. cit.

3. The Sydney Morning Herald, 11 December 1993 and The Australian, 24 December 1993.

4. Second Reading Speech, Olympic Insignia Protection Amendment Bill 1993, p.4.

5. Davies and Others v Commonwealth of Australia and Another (1988) 82 ALR 633.

Merrin Mason (06 2772476)

Bills Digest Service 11 January 1994

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1994

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1994.