5.3 Propositions of law relevant to the OIP Act appeal
93 The statutory purpose of the OIP Act is, plainly enough, to ensure that the AOC is better equipped to protect its income stream through licensing than it would be under the application of the more generally worded consumer protection provisions of the ACL. The focus of the changes brought about in the 2001 amendments to the OIP Act is ambush marketing, which the explanatory memorandum explains is, "the unauthorised association of businesses with the marketing of high-profile events without paying for the marketing rights". However, the OIP Act does not use the expression "ambush marketing", and the scope of the protection afforded to the AOC in its revenue raising activities is to be ascertained from the language of the OIP Act itself. Despite the relevance of the statutory context by reference to secondary materials, the best indicia of Parliament's intention as to the scope of the rights conferred is the statutory language itself; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].
94 The issues in the present appeal direct particular attention to the language of s 30(2) of the OIP Act. Subsection 30(2) involves four cumulative requirements. First, that a person causes a protected Olympic expression to be applied to services of the first person (s 30(2)(a)). Secondly, that the application is for advertising or promotional purposes or is likely to enhance the demand for the goods or services (s 30(2)(b)). By s 28(2), an advertisement is taken to promote goods or services if it promotes a particular person, and the person provides services and it would be concluded, by a reasonable person, that the advertisement was designed to enhance the commercial image of the person promoted in the advertisement. Thirdly, that the application of the protected Olympic expression, to a reasonable person, would suggest that the person is or was a sponsor of or is or was the provider of sponsorship-like support for one or other of the following; the AOC, the IOC, a Summer or Winter Olympic Games, the organising committee for a Summer or Winter Olympic Games, an Australian Olympic team, a section of an Australian Olympic team or an individual member of an Australian Olympic team (s 30(2)(c)) (referred to below collectively as a relevant Olympic body). Fourthly, that the protected Olympic expression is applied in Australia (s 30(2)(d)).
95 Each requirement is prescriptive and reflects a Parliamentary intention to provide protection to the AOC's revenue stream within the constraints set out therein. The presently relevant requirement is the third, set out in s 30(2)(c), in respect of which the following observations are apposite.
96 First, the words "the application" of the protected Olympic expression in s 30(2)(c) direct attention to the application of those words in a particular advertisement, in the context of that advertisement as a whole. An advertisement that does not use a protected expression is unlikely to fall within the section.
97 Secondly, the requirement that the application "to a reasonable person, would suggest" sponsorship or sponsorship-like support involves an objective test. As in a claim under s 18 of the ACL, it is necessary to consider the class of persons to whom the advertisements are directed and to consider the effect that the advertisement is likely to have on a reasonable member of that class; see, by analogy, Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12; (2000) 202 CLR 45 at [103] (Campomar) (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
98 In this connection, the context of the relevant advertisement must be taken into consideration. For instance, for the television commercials, considerations such as those identified in Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 (ACCC v TPG) at [47] (French CJ, Crennan, Bell and Keane JJ) arise (footnotes omitted):
… Here, the advertisements were an unbidden intrusion on the consciousness of the target audience. The intrusion will not always be welcome. The very function of the advertisements was to arrest the attention of the target audience. But while the attention of the audience might have been arrested, it cannot have been expected to pay close attention to the advertisement; certainly not the attention focused on viewing and listening to the advertisements by the judges obliged to scrutinise them for the purposes of these proceedings. In such circumstances, the Full Court rightly recognised that "many persons will only absorb the general thrust". That being so, the attention given to the advertisement by an ordinary and reasonable person may well be "perfunctory", without being equated with a failure on the part of the members of the target audience to take reasonable care of their own interests.
99 Thirdly, s 30(2)(c) requires a causal connection between the application of the protected Olympic expression and the reaction of a reasonable person. It is necessary to inquire whether, in the context of the advertisement, the use of the protected Olympic expression gives rise to the relevant suggestion; see, by analogy Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216 at 228, 229 (Stephen J, Barwick CJ, Jacobs and Aickin JJ agreeing). Plainly enough, not all uses of a protected Olympic expression will result in a contravention. For instance, an advertisement that includes such words only in a disclaimer of any connection or association is unlikely to satisfy this requirement.
100 Fourthly, the statutory phrase "would suggest" in s 30(2)(c) does not connote that a "mere suggestion" is sufficient. The section uses the conditional verb "would", which denotes the consequence of an event, and not the conditional verb "could", which denotes a mere possibility or some likelihood. The use of "would" instead of "could" precludes the construction that rests upon a mere suggestion or some likelihood. The primary judge at J[80] found that the word "suggest" must bear its ordinary meaning, which includes, in this context, to "bring before a person's mind indirectly or without plain expression; to call up in the mind (another thing) through association or connection of ideas" (Macquarie Dictionary); and "make known indirectly; hint at, intimate; imply, give the impression" (Shorter Oxford English Dictionary)." That construction is apposite. Taken together, "would suggest" may be understood to mean that the relevant meaning is more likely than not to be brought to mind. In any case, it is for the applicant to establish on the balance of probabilities that this is so.
101 Fifthly, the first form of impermissible suggestion identified in the subsection is that the person is or was a sponsor of one or more of the relevant Olympic bodies.
102 The second form of impermissible suggestion is that the person is or was the provider of sponsorship-like support. That expression is defined in s 29(1) of the OIP Act, set out in full at [88] above. A person provides sponsorship-like support for a relevant Olympic body (s 29(1)):
…
if, and only if, the person provides support on the understanding (whether express or implied) that the support is provided in exchange for a right to associate:
(h) the person; or
(i) goods or services of the person;
with the committee, games, team, section or individual concerned.
103 The term "support" is not defined in the OIP Act, but is relevantly defined in the Macquarie Dictionary as:
5. To maintain (a person, family, establishment, institution, et cetera.) by supplying with things necessary to existence; provide for.
6. To uphold (a person, cause, policy, et cetera.) by aid or countenance; back; second (efforts, aims, et cetera.)
104 The definition of sponsorship-like support creates a form of impermissible suggestion that is broader than "sponsorship". The relevant suggestion may be that there is merely an understanding between a relevant Olympic body and the first person for instance that the first person provides a quid pro quo in return for a right to associate. The bargain suggested need not be of direct financial assistance. It could include, the provision of positive publicity, provided that a reasonable person views it as conveying the suggestion that the publicity is provided in exchange for a right to associate with a relevant Olympic body.
105 A particular advertisement may contain two or more relevant suggestions, one of which amounts to a suggestion that is prohibited. In each case it will be a factual question whether or not the Court is satisfied that such a suggestion is made.
106 In each case, it will be necessary to identify from the advertisement the relevant suggestion of support for the relevant Olympic body.
107 Some additional and uncontroversial observations may be made in relation to the approach to an alleged contravention of Chapter 2 of the OIP Act.
108 In assessing an advertisement, it is legitimate to consider evidence of consumers who have seen it and their reactions, but caution should be taken. In the context of a case where misleading or deceptive conduct is alleged, evidence from individual consumers that they have been misled by the impugned conduct is of limited utility. It has no statistical significance and the Court cannot draw inferences from it that any section or fraction of the population will have similar reactions. But if the inference is open, independently of such testimonial evidence, that the conduct is misleading or deceptive or likely to mislead or deceive, then it may be that the evidence of consumers that they have been misled can strengthen that inference; Verrocchi v Direct Chemist Outlet Pty Ltd [2015] FCA 234; (2015) 228 FCR 189 (Middleton J) at [94]; State Government Insurance Corporation v Government Insurance Office of New South Wales (1991) 28 FCR 511; 101 ALR 259 at 529 (French J, as he was then). Conversely, the absence of evidence of confusion may also be significant; for instance in cases where the impugned conduct has been going on for a considerable period of time, the applicant was aware of the need to obtain evidence to support its case and no such evidence was forthcoming; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446; (2006) 229 ALR 136 at [81]. These observations are apposite, mutatis mutandis, to consideration of an advertisement under the OIP Act.
109 The intention of the advertiser may be relevant for reasons analogous to those considered in Australian Woollen Mills Limited v FS Walton & Co Limited [1937] HCA 51; (1937) 58 CLR 641 (Australian Woollen Mills), where at 657 Dixon and McTiernan JJ said:
The rule that if a mark or get-up for goods is adopted for the purpose of appropriating part of the trade or reputation of a rival, it should be presumed to be fitted for the purpose and therefore likely to deceive or confuse, no doubt, is as just in principle as it is wholesome in tendency. In a question how possible or prospective buyers will be impressed by a given picture, word or appearance, the instinct and judgment of traders is not to be lightly rejected, and when a dishonest trader fashions an implement or weapon for the purpose of misleading potential customers he at least provides a reliable and expert opinion on the question whether what he has done is in fact likely to deceive.
110 However, the role of intention should not be overstated. It is "simply one piece of evidence to be assessed with such other evidence as may be adduced on the issue"; Windsor Smith Pty Ltd v Dr Martens Australia Pty Ltd [2000] FCA 756; (2000) 49 IPR 286 (Windsor Smith) at [33], [34] (Sundberg, Emmett and Hely JJ).