2013‑2014

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

MAJOR SPORTING EVENTS (INDICIA AND IMAGES) PROTECTION BILL 2014

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Sport, the Hon Peter Dutton MP)

MAJOR SPORTING EVENTS (INDICIA AND IMAGES) PROTECTION BILL 2014

 

OUTLINE

 

The Major Sporting Events (Indicia and Images) Protection Bill 2014 is designed to prevent the unauthorised commercial use of certain indicia and images associated with the following events:

·        Asian Football Confederation (AFC) Asian Cup 2015 with matches to be held from 9-31 January 2015;

·        International Cricket Council (ICC) Cricket World Cup 2015 to be jointly hosted with New Zealand from 14 February – 29 March 2015; and

·        Gold Coast 2018 Commonwealth Games to be held from 4-15 April 2018.

 

Building on the reputation from hosting the Sydney 2000 Olympic Games and the Melbourne 2006 Commonwealth games, the Government has committed to supporting the staging of the events to showcase Australia as a host of world class major sporting events and build trade, tourism and event legacy opportunities.

 

Traditionally event owners rely on sponsorship revenue to stage their events, reducing the reliance on government financial support. In return for their event sponsorship, sponsors can publicise their support by using event indicia and images.  However, businesses that do not sponsor the events may seek to capitalise on the event by using event indicia or images, suggesting a sponsorship arrangement with the event.  This is called ‘ambush marketing by association’. Such behavior can cause confusion for the general public as to who the actual event sponsors are.

 

Rights protection is a critical element of hosting major sporting events to protect the commercial rights and investment of event owners and their sponsors. Special legislation was introduced for the Sydney 2000 Olympic Games (Sydney 2000 Games (Indicia and Images) Protection Act 1997) and the Melbourne 2006 Commonwealth Games (Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2005) to prevent the unauthorised commercial use of certain indicia and images associated in relation to these events.

 

Both the Australian Government and the State and Territory Governments have provided significant financial input for the events.

 

This rights protection measures in the Bill will help the authorising bodies and authorised persons attract additional sponsors and maximise sponsorship revenue targets. This in turn reduces financial investment by Government to ensure event viability.

 

The Bill will provide the Chief Executive Officer (CEO) of Customs with the authority to seize infringing goods at the border in accordance with a similar framework under which the Office operates under the Trade Marks Act 1995 and the Copyright Act 1968.

 

 

 

Some of the key features of the Bill are:

 

• The Bill prevents the unauthorised commercial use of protected indicia and images.
• Each of the events will have a list of agreed words and phrases.
• It is intended that the Bill will exempt the use of certain indicia and images for each event where the use is for the purpose of the provision of information, or the purpose of criticism or review.
• The Bill provides a range of potential remedies including injunctions, damages, corrective advertisement and the seizure of goods.
• It will be based on existing provisions within the Trade Marks Act 1995 (Sections 131-144) that relate to the importation of goods infringing Australian trade marks to avoid confusion for business, consumers and those administering the measures.
• The measures in the Bill will protect the existing contractual agreements between the relevant for State and Territories and the authorising bodies.
• The protection periods cease on the following dates:
• 2015 Asian Cup – 30 June 2015;
• Cricket World Cup 2015 – 31 March 2016; and
• 2018 Commonwealth Games – 31 December 2018.
• It is proposed that the Bill will not include any criminal offence provisions as these can be dealt with through existing legislation such as the Trade Marks Act 1995 and the Copyright Act 1968.

 

 

 

Financial Impact Statement

 

There is no identified regulatory burden impact for business and no compliance cost associated with the proposed introduction of new major sporting events legislation.

 

 

MAJOR SPORTING EVENTS (INDICIA AND IMAGES) PROTECTION
BILL 2014

 

REGULATION IMPACT STATEMENT

Background

The Asian Football Confederation (AFC) Asian Cup 2015, the International Cricket Council (ICC) Cricket World Cup 2015 and the Gold Coast 2018 Commonwealth Games (the ‘Events’) will be significant international sporting events to showcase Australia. 

 

As a condition of being awarded the right to host these events, the Australian Government provided written undertakings to protect the unauthorised commercial use of certain indicia and images associated with each of the Events, commensurate with the support provided to the Melbourne 2006 Commonwealth Games, and enact any required legislation by early 2014.

 

Sponsorship revenue for the three events is difficult to quantify as the event owners traditionally establish commercial-in-confidence multi-year agreements with corporate sponsors that cover several events in their respective annual calendars.   For example, the existing ICC sponsorship rights agreements include nine major and ten minor events for the period of 2007 to 2015 with the World Cup being their biggest event.  The Asian Cup is in a similar position with AFC sponsorship covering multiple events.  The Commonwealth Games sponsorship target for 2018 is $95 million, excluding any licensing and merchandise revenue. 

 

Traditionally event owners rely on sponsorship revenue to stage their events, reducing the reliance on government financial support. In return for their event sponsorship, sponsors can publicise their support by using event indicia and images.  However, businesses that do not sponsor the events may seek to capitalise on the event by using event indicia or images, suggesting a sponsorship arrangement with the event.  This is called ‘ambush marketing by association’.

 

Precedent for major sporting events legislation has been established by the Sydney 2000 Games (Indicia and Images) Protection Act 1996 and the Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2005. These were enacted to provide legislative protection to event owners for certain event insignia as existing legislative mechanisms were deemed inadequate to prevent incidents of obvious ambush marketing. Both these Acts have since been repealed.

 

Problem or Issue Identification

The Event owners have sought a commitment from the government to protect against the unauthorised commercial use of certain indicia and images associated with the respective events to help them secure and maintain event sponsorship.

 

If sponsors do not have certainty that they are the only businesses that can directly benefit from association with the Events, they may withdraw their sponsorship or decide not to support the Events.  A decrease in sponsorship revenue could increase the need for financial assistance from the Australian Government and/or state and territory governments to stage the events.

An analysis was undertaken by the Major Events Taskforce in the Office for Sport and relevant government agencies of the existing legislation and the commitments provided by the Australian Government. The analysis identified that:

·          The existing Acts do not provide the level of protection committed to. In particular,

not all Event indicia can be trademarked as the Trade Mark Act 1995 and the Copyright Act 1968 do not extend to the protection of common words, titles and short expressions.

·          Customs powers in the Trade Marks Act 1995 and the Copyright Act 1968 have been strengthened in the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 since Melbourne 2006 and these should be utilized in the major sporting events legislation to avoid confusion for business, consumers and those administering the measures.

·          Some legislation exists at the state/territory government level to protect against ambush marketing but there is no consistent approach.

 

The results of a review of the legislation for the two previous major events mentioned above that was undertaken by Frontier Economics in 2007 noted that:

·          the effectiveness of these Acts was due to their deterrence and signaling effects and the enhanced ability of the Event Organisers to enforce their rights by threatening to take action under the legislation thus limiting the number of breaches; and

·          greater clarity regarding the existence and scope of property rights enhances competition.

 

To highlight this point the Australian Customs Service Annual Report 2005-06 p112 noted that “the Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2005 was in force until 30 June 2006. It strengthened our powers to support the intellectual property associated with the 2006 Games. No seizures of counterfeit goods were made under this legislation, but experience indicated that it was important to have such measures in place”.

 

Specification of the Desired Objectives

 

The primary objective of the proposed major sporting events indicia and images protection legislation is to support the Events.

 

The secondary objectives are to:

·             provide a more secure environment in which the authorising bodies can raise and maintain sponsorship revenue;

·             minimize ambush marketing of the Events sponsors; and

·             balance the interests of the authorising bodies and authorised persons with the commercial interests of third parties.

 

Identification of Options

 

In response to the request by the Event Owners, to provide Events indicia and images protection, three options for the Australian Government have been identified.

 

Option 1:  No Legislative Action

The Australian Government would take no specific action and would rely on existing intellectual property legislation and other competition and consumer laws, to address the problem of ambush marketing.

 

Option 2:  Legislative Action with Exemptions

The Australian Government introduces major sporting events indicia and images protection legislation that would provide a range of remedies including injunctions, damages, corrective advertisements and the seizure of goods to authorising bodies and authorised persons for unauthorised commercial use of event indicia and images while providing limited exemptions for some third parties from prohibitions against their use.  It would include some provisions expected to clarify the scope of the legislation where the scope might otherwise be in doubt.  It is proposed that the legislation will not include any criminal offences. Official Users would need to rely on the existing criminal offence provisions in the Trade Marks Act 1995, the Copyright Act 1968 and the Designs Act 2003.

 

It is proposed that the legislation have schedules specific to each of the Events and provide protection for a range of Event indicia and images. A list of the agreed indicia and images for each event is at Attachments A-C. The legislation would include sunset clauses that the specific schedules would cease to have effect within twelve months of the completion of the specific Events.

 

Exemptions similar to those provided by the Melbourne 2006 Commonwealth Games legislation would apply to parties providing information (including factual reporting by the media), criticism and/or review, which did not fall within the meaning of ‘use for commercial purposes’.  References to criticism or review would be to permit a reference to protected indicia and images in newspapers, magazine or periodicals, in broadcast or in a cinematograph film and reference to reporting in news and current affairs programs.

 

In addition, State/Territory Governments will be exempt from the legislation as their access to the use of intellectual property rights is linked to individual arrangements established by virtue of the hosting rights.

Option 3:  Legislative Action with No Exemptions

The Australian Government introduces strict major sporting events indicia and images protection legislation that would provide a range of remedies to Official Users for unauthorised commercial use of event indicia and images without exemptions for any third parties.  The indicia and images protected would be the same as under Option Two, however this option would not allow the same level of flexibility.

 

Assessment of Impacts (Costs and Benefits) of Each Option

 

Impacted Group Identification

The same groups would be affected by the implementation of any one of the following three options.

These groups are:

·           third parties, including but not limited to Event participants, including players, athletes, coaches and other professionals associated with the Events; sporting organisations associated with the Events; institutes of sport; businesses providing goods or services for past, present and future events; non-affiliated businesses operating honestly and consumers purchasing goods or services associated with the Events;

·           the authorising bodies; and

·           the Australian Government.

 

There is no identified regulatory burden impact and no compliance cost associated with the proposed introduction of new major sporting events legislation.

The following qualitative analysis considers the impact of costs and benefits for the identified groups for each of these three options.

 

Option 1:  No Legislative Action

Costs

Third parties:

·          consumers may find it difficult to identify goods and services that are officially authorized by the authorising bodies; and

·          Event sponsors would have limited protection and timely remedy from ambush marketing by association.

 

Authorising bodies

·          applications for registration of trademarks for eligible Event indicia and images;

·          the authorising bodies may be vulnerable to ambush marketing;

·          the authorising bodies ability to gain increased levels of sponsorship may be constrained because it could not provide assurances to sponsors that they will not be subject to ambush marketing; and

·          by narrowing the range of remedies to those contained in existing intellectual property legislation, the authorising bodies would have difficulty replacing any loss of revenue from ambush marketing activities.

 

Australian Government:

·          if the ability of the authorising bodies to raise non-government revenue was constrained, there may be greater pressure on the Government to provide additional financial assistance to the authorising bodies and state and territory governments.

·          potential loss of an Event, given the commitments made.

 

Benefits

Third parties:

·          subject to the limitations imposed by the current legal framework (Trade Marks Act

1995, Copyright Act 1968, Designs Act 1906, and the Competition and Consumer Act 2010, Schedule 2 – Australian Consumer Law,), third parties would be free to use the Events indicia and images to indicate their association or involvement with the authorising bodies and the Events generally.

Authorising bodies:

·          there would be no benefits to the authorising bodies in adopting this option.

 

Australian Government:

·          the Government would not need to dedicate time and human resources to the legislative process.

 

Option 2:  Legislative Action with Exemptions

Costs

Third parties:

·          third parties including Event participants, including players, athletes, coaches and other professionals associated with the Event; sporting organisations and institutes of sport associated with the Events (and their third party sponsors) would be restricted, to a certain extent, in their use of the Event indicia and images.  They would not be able to use the specified Event expressions in ways that would suggest the existence of a sponsorship arrangement with the Events without the authorisation of the authorising bodies or an authorised person;

·          third parties may have to deal with threats and legal proceedings initiated by authorising bodies and authorized persons of event indicia and images who believe that their rights under the legislation are being infringed; and

·          third parties and their sponsors may become confused about increased regulatory requirements.

 Authorising bodies:

·          the authorising bodies may be required to monitor compliance of its authorised persons; monitor advertising in the media for ambush marketing of its sponsors; administer the register for the authorisation of insignia to sponsors; and enforce any breaches;

·          the authorising bodies may have to deal with threats and legal proceedings initiated by authorising bodies and authorized persons of event indicia and images who believe that their rights under the legislation are being infringed;  and

·          the authorising bodies may still face some level of ambush marketing as some options may remain available to third parties to promote their own activities, including their involvement with the respective Events, without using the Event expressions.

 

Australian Government:

·          providing legislative protection to a particular organisation/s might increase the likelihood of the Government receiving similar requests for legislative protection in the future;

·          there may be an increased  burden placed on the courts and on the Australian Customs and Border Protection Service in dealing with proceedings and actions under the legislation; and

·          the Government would need to dedicate time and human resources to the legislative process.

 

Benefits

Third parties:

·          in accordance with the proposed exemptions, third parties would be able to use the Events expressions to indicate or publicise their factual and historical association or involvement with the Events.  This would be subject to the limitations imposed by the current legal framework (Trade Marks Act 1995, Copyright Act 1968, Designs Act 1906, and the Competition and Consumer Act 2010, Schedule 2 – Australian Consumer Law), and should not convey the impression of an ongoing sponsorship for or by the authorising bodies if that is incorrect;

·          the providers of information (including factual reporting by the media), criticism and/or review, would be free to use the Events expressions for legitimate non- commercial purposes.  The proposed major sporting events indicia protection legislation would not seek to restrict the news information flow within the public arena; and

·          there would be more certainty for consumers purchasing officially licensed Events goods and services.

Authorising bodies:

·          the authorising bodies would be able to provide greater security for its sponsors by protecting against ambush marketers, giving it a greater capacity to maintain its current sponsors and increase its sponsorship revenue over time; and

·          the authorising bodies would have access to an expanded range of remedies to assist it in protecting its intellectual property. 

 

Australian Government:

·             there may be less risk that the Government will be asked to provide further financial assistance to the authorising bodies due to the likely increased ability of the authorising bodies to raise revenue through sponsorship.

·          the Government would be honouring its commitments to the authorising bodies.

 

Option 3:  Legislative Action with no Exemptions

Costs

Third parties:

·          legislation would be standardised and inflexible and would not deal with the diverse conditions in which the Events expressions are used; and

·          all third parties would be prevented from using the Events expressions for criticism, review and when making factual statements about their past involvement in, or association with, the authorising bodies and the respective Events.

 

Authorising bodies:

·          the authorising bodies may incur additional costs, as they would be required to monitor compliance of its authorised persons; monitor advertising in the media for ambush marketing of its sponsors; administer the register for authorisation of insignia to sponsors; and enforce any breaches; and

·          the authorising bodies may still be vulnerable to some level of ambush marketing as some options may remain available to third parties to promote their own activities, including their involvement with the Events, without using the Event expressions.

Australian Government:

·          the Government would not be providing balanced legislation as the rights of the authorising bodies to protect against ambush marketing would outweigh the rights of third parties to use Events expressions in a factual and historical context;

·          there may be an increased  burden placed on the courts and on the Australian Customs and Border Protection Service in dealing with proceedings and actions under the legislation; and

·          the Government would need to dedicate time and human resources to the legislative process.

Benefits

Third parties:

·          sponsors of the Events would receive a higher level protection against ambush marketing.

 

Authorising bodies:

·          this option would provide the most comprehensive level of protection for the authorising bodies against ambush marketing of the three options;

·          this option would maximise the authorising bodies ability to raise non-government revenue; and

·          the authorising bodies would have certainty over the protection of its sponsors from ambush marketing as provided by the legal sanctions.

 

Australian Government:

·          by minimising the risk of ambush marketing and thus maximising the authorising bodies ability to raise sponsorship revenue, the likelihood of the Government being asked to provide further financial assistance for the Events would be reduced relative to Option 2; and

·          the Government would be honouring its commitments to the authorising bodies.

 

Consultation

 

Consultation was undertaken on the issue of protection of the Events indicia and images with the following Australian Government departments and agencies:

·          Attorney-General’s Department;

·          Australian Customs and Border Protection Service;

·          Department of Communications;

·          Department of the Prime Minister and Cabinet;

·          Australian Federal Police;

·          Australian Government Solicitors;

·          IP Australia; and

·          The Treasury.

 

Consultation was also undertaken on the issue of protection of Event indicia and images with the following:

·          State and Territory Governments;

·          The Local Organising Committees on behalf of the authorising bodies

With regards to the Options Stage RIS, the agency has fully complied with the RIS requirements.

Australian Government agencies

The Secretaries Committee on Major Sporting Events (SCMSE) recommended in February 2013 to pursue legislation, with the approach taken for the Melbourne 2006 Commonwealth Games to form the basis for negotiations. Since that time the Major Events Taskforce in the Office for Sport at the Department of Health has led extensive consultation with Australian Government agencies, the state and territory governments and the local organizing committees for the events on behalf of the authorising bodies to develop an intellectual property and rights protection framework to underpin the proposed new legislation.

 

While all parties were supportive of the objectives of the proposed legislation, in the course of discussions between Australian Government agencies with responsibility for intellectual property issues the following points were made:

 

Constitutional Power

 

The Australian Government must be satisfied that any proposed legislation is supported by a constitutional head of power before it is introduced to Parliament. The Australian Government Solicitor confirmed the Australian Government has constitutional power to enact the proposed legislation.

 

Complementarity of State/Territory and Commonwealth Legislation

 

The Australian Government would need to consider the potential for overlap between Commonwealth and State legislation.  For the AFC Asian Cup 2015 the Commonwealth and the States of New South Wales, Victoria and Queensland and the Australian Capital Territory
co-signed the commitments to deliver intellectual property and commercial rights protections.

 

The Queensland Government has enacted its own Commonwealth Games Arrangements (Brand Protection) Amendment Act 2013 to provide the Gold Coast 2018 Commonwealth Games indicia and images with further protection in Queensland. The Queensland Government is seeking complementary national legislation to provide protections against ambush marketing outside of Queensland for this event.

 

IP Australia raised the following issues:

·         authorising bodies or authorised persons of event indicia and images may have the costs of seeking legal advice, issuing 'cease and desist' letters and/or undertaking legal proceedings where they believe that their rights under the legislation are infringed; and

·         Third parties may have to deal with threats and legal proceedings initiated by authorising bodies and authorised persons of event indicia and images who believe that their rights under the legislation are being infringed.

 

The Department of Health believes that these matters relate to enforcement obligations as opposed to compliance costs. This view has been supported by the Office for Best Practice Regulation who stated ‘No need to cost this. The Government is not imposing a requirement/burden for firms/people to take legal action.’

 

Australian Customs and Border Protection Services noted that:

·         border enforcement work for the events would be undertaken as part of its business as usual activities, however it was noted that there will be a significant resource impact.

 

It is worth noting that funding has been provided in the 2012-13 Portfolio Additional Estimates Statements (PAES) for the Australian Customs and Border Protection Service ($0.5 million) and IP Australia ($0.2 million) to help offset the identified administration costs for government to implement the new legislation for the Asian Cup 2015 and the Cricket World Cup 2015. This amount should therefore meet any additional resource costs over and above business as usual activities.

 

Complementarity of New Zealand Legislation

 

As New Zealand is co-hosting the Cricket World Cup 2015 the Australian Government will need to consider complementary legislation. The Major Events Management (Cricket World Cup 2015) Order 2013 pursuant to Sections 7, 8 and 9 of the Major Events Management Act 2007 has been introduced. As both countries are hosting the Cricket World Cup 2015, the Cricket World Cup 2015 Organisers are keen to have similar processes in place for all operational aspects of the Event.

 

 

State and territory governments

States where some legislation already exists have requested that the Commonwealth’s proposed legislation does not impact or restrict them from using their legislation and, where possible, highlight the order of precedence.

 

Governments’ support the burden for enforcement being the responsibility of the authorising bodies and the authorized persons. 

 

The level of protection in new legislation needs to reflect the changes in technology and uptake of social media by the general public since the Melbourne 2006.

 

Third parties

Given that legislation is common practice for major sporting events internationally, of the significance of the Events, including the 2000 Olympic Games and the 2006 Commonwealth Games, the Australian Government did not undertake a formal consultation process regarding the impact on affected third parties. However, it has worked extensively with government agencies, the states and territories and the local organizing committees on behalf of the authorising bodies over the past twelve months to progress the matter. The proposed framework was agreed by all relevant Australian Government agencies in July 2013.  Through this mechanism agencies provided comments in relation to the impact on affected third parties.

 

Conclusion and Recommended Option

 

Option Two is the recommended option as it strikes the most appropriate balance between the interests of the authorising bodies and any affected third parties. The clarifying provisions and exemptions would define the acceptable use of Events indicia and images, decreasing any confusion that might otherwise occur.

 

Third parties covered by the exemptions and clarifying provisions would be able to use the Events indicia and images for criticism and review and for the purposes of providing information without needing to obtain authorisation from the authorising bodies, and as such would not be unreasonably constrained by the proposed protection.  However, third parties not covered by the exemptions and clarifying provisions would not be able to use Events indicia and images without first obtaining authorisation from the authorising bodies.

 

The costs to the authorising bodies of allowing the limited group of third parties to use the Events expressions for criticism or review and to provide information without its authorisation is outweighed by the benefits to those parties.

 

The authorising bodies would still derive significant benefit through a greater ability to raise sponsorship revenue.

 

Implementation and Review

 

The proposal would be implemented when the proposed major sporting events indicia protection legislation receives Royal Assent.  An evaluation of its effectiveness and impacts would be undertaken immediately after the relevant sections of the legislation cease to have effect:

·           AFC Asian Cup 2015 from 30 June 2015;

·           ICC Cricket World Cup from 31 March 2016; and

·           Gold Coast 2018 Commonwealth Games from 31 December 2018.

 

Summary Regulation Impact Statement for the Major Sporting Events (Indicia and Images) Protection Bill

 

The proposed major sporting events indicia protection legislation is expected to have a positive impact on business and no significant impact on families.

The key areas of the impact are:

·           the authorising bodies will have a greater capacity to raise sponsorship revenue;

·           sponsors of the authorising bodies will have legislative protection against ambush marketing;

·           non-sponsors of the authorising bodies will have a very limited capacity to associate themselves with the Events;

·           third parties covered by the exemptions and clarifying provisions will be able to use the Events indicia and images for criticism or review and for the purposes of providing information;

·           the authorising bodies will receive indicia and images protection legislation consistent with that afforded to Melbourne 2006 Corporation under the Melbourne 2006(Indicia and Images) Protection Act 2005 and in line with commitments made by the Australian government when bidding to host the Events; and

·           the proposed major sporting events indicia protection legislation would include a sunset clause for each of the three Events and cease to have effect as follows:

·           AFC Asian Cup on 30 June 2015;

·           ICC Cricket World Cup on 31 March 2016; and

·           Gold Coast 2018 Commonwealth Games on 31 December 2018.

 

 

Regulatory Burden and Cost Offset (RBCO) Estimate Table

Average Annual Compliance Costs (from Business as usual)
Costs ($m)	Business	Community Organisations	Individuals	Total Cost
Total by Sector	$0	$0	$0	$0
Cost offset ($m)	Business	Community Organisations	Individuals	Total by Source
Agency	$0	$0	$0	$0
Within portfolio	$0	$0	$0	$0
Outside portfolio	$0	$0	$0	$0
Total by Sector	$0	$0	$0	$0
Proposal is cost neutral?       X yes        * no
Proposal is deregulatory       X yes        * no
Balance of cost offsets          $0

ATTACHMENT A

AFC ASIAN CUP AUSTRALIA 2015

Part 1: Words

AFC Asian Football Confederation

AFC Asian Cup Australia 2015

AFC Asian Cup

Asian Cup 2015

Asian Cup Australia 2015

AFC Asian Cup 2015 Qualifiers

Local Organising Committee AFC Asian Cup Australia 2015

Asian Cup

AC2015

 

Part 2: Combinations of words

 

Any words in Column A if used in combination with any words in Column B

 

Column A	Column B
Asian Football Confederation	2015
AFC Asian Cup	Partner
AFC Asian Cup Australia	Commercial
Asian Football Cup	Official
Asian Soccer Cup	Agent
Asian Cup	Ticketing
AC2015	Travel
	Venue
	Training Site
	Broadcaster
	Champions
	Championship
	Fanzone
	Hospitality
	Host
	Licensed
	Licensee
	Product
	Qualifier
	Trophy
	Retail
	Store
	Shop
	Sponsor
	Local
	Supplier
	Supporter
	Merchandiser
	Caterer
	Finalists
	City
	Football
	Soccer
	Country
	Hotel
	MVP
	Most Valuable Player
	Goal scorer
	Team of the Tournament
	Event

 

For the purposes of legislation, AFC Asian Cup Australia 2015 words and indicia that are represented in a language other than English should also be taken to be AFC Asian Cup Australia 2015 words and indicia.

ATTACHMENT B

CRICKET WORLD CUP 2015

 

Part 1: Words

International Cricket Council

ICC

ICC Cricket World Cup

Cricket World Cup

CWC

CWC 2015

Cricket World Cup 2015

Cricket World Tournament

Cricket World Tournament Sponsor

Cricket World Trophy

Cricket World Cup Champions

Cricket World Champions

 

Part 2: Combination of Words

Any words in Column A if used in combination with any words in Column B

Column A Column B International Cricket Council 2015 ICC Partner ICC Cricket World Cup Sponsor ICC Cricket World Cup Event Official ICC World Cup Commercial CWC Ticket Cricket World Cup Ticketing World Cup Cricket  Broadcast   Broadcaster   Champion   Fanzone   Hospitality   Product   Store   Host   Nation   Licensee   Licensed   Trophy   Qualifier   Agent   Retail   Supplier   Merchandise   Merchandiser   Caterer   Finalist   Finalists   City   Venue

For the purposes of legislation, ICC Cricket World Cup 2015 words and indicia that are represented in a language other than English should also be taken to be ICC Cricket World Cup 2015 words and indicia.

 

ATTACHMENT C

GOLD COAST 2018 COMMONWEALTH GAMES

Part 1: Words

Australian Commonwealth Games Association

Commonwealth Games Federation

Australian Commonwealth Games

Coast 2018 Games

Commonwealth Games

GC18 GC2018

Gold Coast 2018 Commonwealth Games

Gold Coast 2018 Games

Gold Coast Commonwealth Games

GOLDOC
Queen’s Baton Relay
Part 2: Any words in column A if used in combination with any words in Column B   Column A Column B 1 2018 21st XXI Commonwealth Games Comm Games 2 Commonwealth Games Commonwealth Games athlete gold silver bronze 3 Australian Commonwealth Games Team   Gold Coast Gold Coast 2018 GC2018 4 Commonwealth Games Australian Commonwealth Games Team partner sponsor provider supplier venue Coast Games Gold Coast Games Gold Coast 2018 Cultural Program Gold Coast 2018 Arts and Community Festival Program Celebrating 2018 Delivering 2018 Embracing 2018

 

For the purposes of legislation, Gold Coast 2018 Commonwealth Games words and indicia that are represented in a language other than English should also be taken to be Gold Coast 2018 Commonwealth Games words and indicia.

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

MAJOR SPORTING EVENTS (INDICIA AND IMAGES) PROTECTION BILL 2014

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

Australia has secured the rights to host a number of major international sporting events over the next four years.  In accordance with commitments made by the Government at the time of bidding, the Major Sporting Events (Indicia and Images) Protection Bill 2014 is designed to prevent the unauthorised commercial use of certain indicia and images associated with the following major sporting events (‘Events’):

•         Asian Football Confederation (AFC) Asian Cup 2015 with matches to be held from 9-31 January 2015;

•         International Cricket Council (ICC) Cricket World Cup 2015 to be jointly hosted with New Zealand from 14 February – 29 March 2015; and

•         Gold Coast 2018 Commonwealth Games to be held from 4-15 April 2018.

During the bidding process for the Events, as is often the case for major international sporting events, it was a requirement for each national peak sporting body to establish a local organising committee (‘LOC’) to run their respective event.  The LOC for the AFC Asian Cup is a wholly owned subsidiary of Football Federation Australia. The LOC for the ICC Cricket World Cup is 50 per cent owned by Cricket Australia and 50 per cent owned by New Zealand Cricket. The LOC for the Gold Coast Commonwealth Games was established under the Commonwealth Games Arrangements Act 2011 (QLD) (Collectively ‘authorising bodies).  Event Owners are generally the international peak sporting body and as a rule own the intellectual property and commercial rights relating to the Event.  The below table sets out the Event Owners and authorising bodies for each Event:

Event	Event Owners	Event Organisers
AFC Asian Cup 2015	Asian Football Confederation	Asian Cup 2015 Local Organising Committee
ICC Cricket World Cup 2015	International Cricket Council	Cricket World Cup 2015 Local Organising Committee
Gold Coast 2018 Commonwealth Games	Commonwealth Games Federation	Gold Coast 2018 Commonwealth Games Corporation (GOLDOC)

 

Holding these Events in Australia is of benefit to the Australian public, as it will provide them with greater access to elite sporting events as well as provide opportunities for Australian sportspeople to compete in top-level international tournaments in front of home crowds.  These events will also bring tourism and trade opportunities to Australia.

The costs of staging and promoting major sporting events, such as the Asian Cup, the Commonwealth Games and the Cricket World Cup, are very high for the Event Owners.  Traditionally authorising bodies rely on sponsorship revenue to stage their events, reducing their reliance on government financial support. In return for their event sponsorship, sponsors are able to publicise their support by using event indicia and images. To provide a degree of certainty to sponsors that their investment in the Event will be protected, the Government committed to providing a range of measures to protect the intellectual property rights through special legislation as a part of the respective bidding processes.

The Bill is similar to the Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2005 (Melbourne 2006 Protection Act), which was designed to provide a more secure financial environment in which the Melbourne 2006 Commonwealth Games Corporation could prevent ambush marketing to ensure that it was able meet the costs of staging the Games through sponsorship revenue.  This Bill will enable the authorising bodies to protect existing sponsors, attract additional sponsors and achieve their sponsorship revenue targets.

Key features of the Bill include:

•           The Bill prevents the unauthorised commercial use of protected indicia and images.

•         The establishment of a registration process to regulate the use of certain indicia and images (Clause 14 – Regulation of use of protected indicia and images, Clause 16 – Register of authorised users).

•           Each of the events will have a list of agreed words and phrases (Schedules 1, 2 and 3).

•         It is intended that the Bill will exempt the use of certain indicia and images for each event where the use is for the purpose of the provision of information, or the purpose of criticism or review (Clause 12 – Criticism, review and provision of information).

•         It is intended that the Act would provide a range of potential remedies including injunctions, damages, corrective advertisement and the seizure of goods. (Part5—Importation of goods and Part 6 - Remedies and Part 7 - Groundless threats).

•         It will reflect existing provisions within the Trade Marks Act 1995 (Sections 131-144) that relate to the importation of goods infringing Australian trademarks to avoid confusion for business, consumers and those administering the measures.

•         The Bill will provide safeguards through civil proceedings for persons who believe that their goods have been wrongly seized to challenge authorising bodies and to reclaim their goods Bill (Part 6 – Remedies and Part 7 –Groundless threats).

 

•           The Bill will protect the existing contractual agreements for state and territories.

•           The protection periods cease on the following dates:

•           2015 Asian Cup – 30 June 2015;

•           Cricket World Cup 2015 – 31 March 2016; and

•           2018 Commonwealth Games – 31 December 2018.

•           It is proposed that the Act will not include any criminal offence provisions as these can be dealt with through existing legislation such as the Trade Marks Act 1995 and the Copyright Act 1968.

 

Human rights implications

The Bill engages the following human rights:

•         The right to enjoy and benefit from culture in article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR);

•         The right to freedom of expression in article 19(2) of the International Covenant on Civil and Political Rights (ICCPR);

•         The right to protection against arbitrary and unlawful interferences with privacy in article 17 of the ICCPR; and

•         Fair trial and fair hearing rights in article 14(1) of the ICCPR.

The right to enjoy and benefit from culture

Article 15(1)(a) of the ICESCR recognises the right of everyone to take part in cultural life. According to the United Nations Committee on Economic, Social and Cultural Rights, the right to culture includes sports and games. This right encompasses access to culture, which includes the availability of a cultural infrastructure, such as places for recreation and sports.

Each Authorising Body is actively engaged in a range of activities that will provide benefit to the Australian public, as it will provide them with greater access to such events as well as provide opportunities for Australian sportspeople to compete in
top-level international tournaments in front of their home crowds. Activities will include but not be limited to:

•         Promotion of participation at both recreational and elite levels in their respective sport(s) including initiatives aimed at the inclusion of minority groups, Indigenous peoples and women at the grassroots level;

•         Improved access to cultural infrastructure for the community, including ethnic groups, minorities, Indigenous peoples, persons with disabilities and women through the upgrading and building of sports facilities;

•         Creation of further opportunities to host similar major sporting events in the future by building the reputation Australia as a host of successful sporting events, thus providing further opportunities for Australians to access similar sporting events;

•         Community engagement through education programs and multicultural events; and

•         Strengthening cultural ties between Australia and participating nations, which will provide opportunities for tourism, trade and the further mutual development of cultural understanding.

Revenue generated through the protection of the Event indicia and images will be key to ensuring the authorising bodies can afford to host the Events, as well as providing cultural and other legacies such as those outlined above.

Right to freedom of expression

As the Bill is designed to limit the ability of non-authorised users to use protected indicia and images in their publications, broadcasts, displays or promotions, the Bill engages and limits the right to freedom of expression in article 19 of the ICCPR. The Bill establishes a registration process to restrict the use of protected indicia and images to official users only.

The right to freedom of expression is not an absolute right and may be permissibly limited for a number of reasons, including where it is necessary for the protection of the rights and freedoms of others (article 19(3)).  The proposed limitation will restrict the use of the protected indicia and images for each Event from 1 July 2014 or from the day after it receives the Royal Assent until the following dates specified for each event:

·                     2015 Asian Cup – 30 June 2015;

·                     Cricket World Cup 2015 – 31 March 2016; and

·                     2018 Commonwealth Games – 31 December 2018.

This limitation is necessary to promote the rights of people to access culture by ensuring that sufficient revenue can be raised to stage these Events, including through sponsorship and the commercial use of the indicia and images.  The Bill creates remedies for using the protected indicia or images which include the ability to seek injunctions, damages, corrective advertisement and the seizure of goods.

The Bill will provide limited exemptions for certain third parties from prohibitions against the use of certain indicia and images for each event where the use is for the purpose of the provision of information, or the purpose of criticism or review in certain cases (Clause 12). The limitations associated with freedom of expression are reasonable, necessary and proportionate to achieving the objective of promoting the right of individuals to enjoy and benefit from participating in cultural life through participation in and access to sport.

Right to protection against arbitrary and unlawful interferences with privacy

The Bill engages with the right to protection against arbitrary and unlawful interferences with privacy in two ways:

1)      seizure of imported goods; and

2)      the provision of information about the importer of the seized goods by Customs to the authorising bodies.

Firstly, the Bill engages the right to privacy through border protection provisions modelled on the Melbourne 2006 Protection Act, but with appropriate changes to reflect recent changes made to the Trade Marks Act and the Copyright Act as amended by the RTB Act.  These provisions relate directly to Customs seizure of goods: notice of seizure, inspection of goods, release of goods and the disposal of goods.

As the Bill will have provisions for search and seizure of imported goods in accordance with the Trade Marks Act and the Copyright Act, the Bill engages and limits article 17 of ICCPR which prohibits arbitrary or unlawful interference with a person's privacy, family, home or correspondence.   Interferences with privacy may be permissible, provided they are authorised by law and are not arbitrary.  In order for an interference with the right to privacy not to be 'arbitrary', the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in the particular circumstances.  The United Nations Human Rights Committee has interpreted 'reasonableness' in this context to imply that 'any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case'.

The Bill is consistent with the search and seizure powers in the Copyright Act and the Trade Marks Act. The Bill includes a requirement for Event Owners to maintain a register of authorised users. The register will provide clarity around who may associate themselves with the Events and will act as a deterrent and guide for potential infringers.  Clarity around the authorised usage of the protected indicia and images will in turn help to ensure that sufficient revenue can be raised to stage these Events.  The limitations associated with the right to protection against arbitrary and unlawful interferences with privacy are reasonable, necessary and proportionate to achieving the objective of promoting the right of individuals to enjoy and benefit from participating in cultural life through participation in and access to sport.

Secondly, the Bill engages the right to privacy through the collection, use, storage and sharing of personal information. The Copyright Act (Division 7 – Seizure of imported copies) and the Trade Marks Act (Part 13 – Importation of goods infringing Australian trade marks) contain provisions for dealing with imports that are suspected of infringing copyright or registered trademarks. The Acts allow intellectual property rights owner to lodge a 'notice of objection' with Australian Customs and Border Protection Service ('Customs and Border Protection') in respect of a particular copyright or trade mark. These Acts permit Customs and Border Protection to seize goods suspected of infringing those rights for a limited period of time, to permit the intellectual property owner to institute infringement proceedings against the importer. If an importer wishes to reclaim goods after the end of the action period, they must first file a claim for release.  A failure to file a valid claim for release will result in the seized goods being forfeited. The intention is that the claim form will provide sufficient information about the importer of the goods (or their Australian agent) to enable them to be contacted for the purposes of instituting infringement proceedings. The Customs and Border Protection CEO is authorised under the Acts to pass this information on to the rights owner.

Regulation 22B of the Copyright Regulations and Regulation 13.5 of the Trade Marks Regulations prescribe the information that must be included in a valid claim for release. It includes:

•         the importer or designated owner's full name, home or business address and address for service

-                      the importer or designated owner's telephone number

•         if the importer or designated owner's home or business address is not in Australia:

-                      an address for service for the person who is the importer's agent in Australia

-                      a telephone number for the person

-                      information showing that the person agreed to be the importer's agent

The Bill will permit this information to be shared in relation the protected indicia and images.  As such, it limits the right to protection from arbitrary and unlawful interference with privacy in Article 17 of the ICCPR.  However, the limitation is proportionate to achieving the legitimate objective of the Bill. This is because intellectual property rights owners need access to this personal information to allow them the opportunity to enforce their rights to a fair trial and fair hearing.

Without such information the intellectual property rights owner is deprived of the ability to enforce their legal rights in protecting their Event indicia and images, which may result in insufficient revenue being raised, thus jeopardising their ability to stage their respective Event. This regime provides a limited and reasonable manner of achieving this objective, with several safeguards in place. For example, the collection and dissemination of information will only occur in specified circumstances (where the goods are suspected of infringing a trade mark or copyright), whereby the Customs and Border Protection CEO has the power to seize goods. The Customs and Border Protection CEO may only seize copies or goods in the circumstances specified in section 135 of the Copyright Act and section 133 of the Trade Marks Act and disclosure of the information in the claim for release form will be limited to the intellectual property rights owner or designated representative.

The limitations associated with the right to protection against arbitrary and unlawful interferences with privacy through the collection, use, storage and sharing of personal information are reasonable, necessary and proportionate to achieving the objective of promoting fair trial and fair hearing rights.

Fair trial and fair hearing rights

The provisions permitting seizure of goods in the Copyright Act (Part V – Remedies and Offences , Division 7 – Seizure of imported copies) and the Trade Marks Act (Part 13 – Importation of goods infringing Australian trade marks) engage fair trial and fair hearing rights (Article 14(1) of ICCPR).

Article 14(1) provides that everyone has a right to a fair trial in the determination of any suit at law (i.e. civil proceedings) or criminal charge.  The Trade Marks Act (Part 12 – Infringement of Trade Marks),the Copyright Act (Part V – Remedies and Offences) and this Bill (Part 4 – Importation of goods, remedies and groundless threats) provide persons who believe that their goods have been wrongly seized with civil proceedings to challenge the intellectual property owner to reclaim their goods. These safeguards engage but do not limit or promote the right to a fair trial or fair hearing.

Conclusion

This Bill is compatible with human rights because it advances the protection of human rights through promoting the right of individuals to enjoy and benefit from participating in cultural life, and to the extent that it also limits human rights, those limitations are reasonable, necessary and proportionate.

 

The Hon Peter Dutton MP, the Minister for Sport

 

 

 

NOTES ON CLAUSES

 

PART 1 – PRELIMINARY

 

Clause 1 – Short Title

 

This clause provides that the Bill, when enacted, may be cited as the Major Sporting Events (Indicia and Images) Protection Act 2014.

 

Clause 2 – Commencement

 

This clause provides that the Act will commence on the latter of 1 July 2014 or the day after it receives the Royal Assent.

 

Instead of including a sunset provision, the Bill provides for the protection of the specified indicia or images for commercial purposes during the particular event’s protection period.  The protection period for each of the Events is until a specified time in the relevant schedules or an earlier day prescribed by the rules.  To add an additional event would require the introduction of an amending act and consideration by Parliament.

 

Clause 3 Objects of this Act

 

The Act is intended to protect Australia’s position as a participant and host in relation to the staging of the Asian Football Confederation Asian Cup 2015, the International Cricket Council Cricket World Cup 2015 and the Gold Coast 2018 Commonwealth Games 2018.

 

The Act is also intended to help protect the relations of and ensure performance of the obligations of the Australian Government, State and Territory Governments and the event bodies.

 

These objects are to be achieved through regulation of the use for commercial purposes of the protected indicia and images for each event, as set out in the Schedules, which will facilitate the raising of revenue in relation to the Events.

 

Clause 4– Simplified Outline of this Act

 

This clause will assist readers to understand the substantive provisions of this Part of the Act, but is not intended to be comprehensive. It is intended that readers rely on the substantive provisions for more specific detail.

 

Clause 5– Act does bind the Crown

 

This clause provides that the Act will bind the Crown in all its capacities.

 

Clause 6– Application of Act

 

This clause sets out the application of the Act, which extends to Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.

Clause 7 – Additional operation of the Act

 

This clause sets out the Commonwealth constitutional heads of power that the Act relies on.

 

PART 2 –INTERPRETATIONS

 

Clause 8 – Simplified outline of this Part

 

This clause will assist readers to understand the substantive provisions of this Part of the Act, but is not intended to be comprehensive. It is intended that readers rely on the substantive provisions for more specific detail.

 

Clause 9 - Dictionary

 

Clause 8 defines certain words and phrases that are used in the Act. It also confirms that the Act will apply to the Asian Cup 2015, Cricket World Cup 2015 and the Gold Coast 2018 Commonwealth Games indicia that are represented in a language other than English, and confirms that the use of ‘indicia’ and ‘images’ for the purposes of the proposed legislation are not intended to express a contrary intention for the purposes of section 23 of the Acts Interpretation Act 1991.

 

Some of the more significant definitions include:

 

‘authorised person’ means a person that has written authorisation to use any or all of  the indicia and images in relation to the particular major sporting event from an authorising body for the event or from another person acting on behalf of the authorising body for the event. For example, state and territory governments have entered into agreements with the Local Organising Committees rather than the Event Owners. The states and territories have been granted rights to the use of event indicia and images under the host city agreements with Event bodies and will not have their rights diminished or forfeited by this Act.

 

‘protected images’ which does not refer to a prescribed list of images, but rather incorporates the broader meaning of any visual or aural representations that, to a reasonable person in the circumstances of the presentation, would suggest a connection with the event.

 

‘protected indicia’, which is defined in Schedules 1, 2 and 3 at Clause 4 through reference to a prescribed list of words and phrases. Subclause (1) prescribes individual words and phrases that, by themselves, fall within the definition for each event. In contrast, Subclauses (2) and (3) set out two lists of indicium, and provides that the definition of ‘protected indicia’ includes any combination of an indicium in an item in Subclause (2) with an indicium in that item in Subclause (3).

           

‘protection period’ means the protection period for the event as specified in the relevant Schedules to this Act that covers the event.

Clause 10 – Interpretation provisions for protected indicia and images

 

The use of indicia and images is not intended to express a contrary intention for the purposes of section 23 of the Acts Interpretation Act 1901.

 

Clause 11 – When protected indicia and images are applied to goods and services

 

This clause describes ways in which the protected indicia or images could be applied to goods or services. It also includes a definition of “advertisement” similar to the definition used in the Olympic Insignia Protection Act 1987 and the Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2005. The clause is not intended to exclude the general meaning of the term ‘applied’.

 

Four specific examples are set out, which are where protected indicia or images are:

• woven in, impressed on, worked into, affixed or annexed to the goods; or
• applied to any covering, document, label, reel or thing in or with which the goods are intended to be “dealt with or provided in the course of trade” (this reference has been included to make clear that Customs will not seize such goods that have had indicia or images applied to them for personal use); or
• used on a signboard or in an advertisement that promotes the goods or services; or
• used in an invoice, price list, catalogue, brochure, business letter, business paper or other commercial document that relates to the goods or services. 

 

All four of the above examples apply in the case of goods, but only the last two examples apply in the case of services.

 

Subclause 11(2) refers to the purposes of this Act in relation to advertisements.

 

Subclause 11(3) refers to Parts 4 and 5.  It states that, for the purposes of those Parts, protected indicia or images are “applied” to goods by a person if the goods (which already have indicia or images applied to them) are imported into Australia for the purpose of sale or distribution by the person.

 

Subclause 11(4) clarifies the meaning of “covering” and “label” as used in Subclause 11(1)(a)(ii).

 

Clause 12– When protected indicia and images are used for commercial purposes

 

This clause explains what it means to use protected indicia or images for commercial purposes in the context of the Act, and sets out the two general situations in which a person will be said to have done so.

 

The first situation is where a user causes indicia or images to be applied to their goods or services.  The application will constitute use for commercial purposes where the application:

• is for the primary purpose of advertising or promotion or enhancing the demand for the goods or services; and
• would suggest to a reasonable person that the person is or was a sponsor of the Event or an event arranged by an Event body in connection with the events.

The second situation may apply where a second person deals in particular ways with the goods or services described in the situation above.  Where these circumstances exist in relation to the user, then a second person will be taken to have used the indicia/images for commercial purposes if they:

• supply or offer to supply the goods or services; or
• expose the goods (not services) for supply by themselves; or
• keep the goods (not services) for supply by themselves or by another person.

 

The second situation will not apply where the user is an official user, as they are excluded under Subclause 12(2)b.  The rationale behind this is that where the first person is properly authorised to use the protected indicia or images for commercial purposes, it should not be necessary for a second person, such as a retailer or distributor, to independently obtain their own authorisation to deal with the goods or services.

 

The meaning of “supply” for the purposes of the section is set out in Subclause 10(4).

 

Clause 13 – Presumption relating to advertising or promotion etc.

 

This clause sets out a presumption relating to Subclause 12(1)(c) and informs the interpretation to be given to those paragraphs.  The clause provides that the application of Event protected indicia or images for the primary purpose of advertising, promoting or enhancing the demand for the goods or services, is prima facie sufficient to suggest:

§  a sponsorship; or

§  the provision of other support

for the purposes of Subclause 12(1)(c)

 

Clause 10 sets out the two situations in which a person uses protected indicia or images for commercial purposes.  Subclause 12(1)(c) sets out that to establish use for commercial purposes it is necessary that the application of protected indicia or images would suggest, to a reasonable person, that the person who caused the application is or was a sponsor or provider of other support of the Event (or an event arranged by an authorising body in connection with the Event). 

 

The presumption set out in Clause 12 is intended to be rebuttable.  It is intended to prevent a non-permitted user from using protected indicia or images for the primary purpose of advertising, promoting or enhancing demand, but circumventing the intent of the legislation by including some type of disclaimer (that they are not a sponsor of the Event).

 

Clause 14 – Criticism, review and provision of information

 

This clause clarifies the meaning to be given to the use of protected indicia or images. 

 

Use of indicia or images for the primary purpose of criticism, review, or the provision of information, is not alone sufficient to suggest a sponsorship or the provision of support for the purposes of Subclause 12(1)(c).

 

This includes as reference to criticism or review in writing, broadcast, social media or any other media.

 

PART 3 – REGULATION OF USE OF PROTECTED INDICIA AND IMAGES FOR COMMERCIAL PURPOSES

 

DIVISION 1 – Introduction

 

Clause 15 – Simplified outline of this Part

 

This clause will assist readers to understand the substantive provisions of this Part of the Act, but is not intended to be comprehensive. It is intended that readers rely on the substantive provisions for more specific detail.

 

DIVISION 2 - Regulation of use of protected indicia and images for commercial purposes

 

Clause 16 – Regulation of use of protected indicia and images for commercial purposes

 

This clause establishes who would be permitted under the proposed legislation to use protected indicia and images for commercial purposes.  Use for commercial purposes would be restricted to the event bodies and to authorised persons (in accordance with the authorisation). Authorisation will be provided in writing by the relevant authorising bodies.

 

Subclause 16(4) provides a clear definition of ‘authorised person’.  A person is an authorised person for a major sporting event if the person has written authorisation from either of the following to use any or all of the event’s protected indicia or images for commercial purposes - an event body to which the indicia or images relate or another person on behalf of, or as authorised by, such an event body.

 

A person who uses a major sporting event’s indicia or images for commercial purposes does not contravene this section, if the person is authorised to use, or not prevented from using, the indicia or images under a provision of a State or territory law that is specified in the Schedules to this Act or as prescribed in the rule in relation to the event.

 

Subclause 16(5) is intended to address any inconsistency that might otherwise arise between the Act and any State or Territory Act referred to in the Schedules. In particular, it is intended to prevent direct inconsistency for the purposes of section 109 of the Constitution.

 

This is particularly relevant to the Queensland Commonwealth Games Arrangements Act 2011 (the Queensland Act) set up for the Gold Coast 2018 Commonwealth Games. However if the purpose for which the person has been authorise under the Queensland Act is not for commercial purposes within the meaning of this Act, then that authorisation will not be effective for the purposes of this Act.

Clause 17– Persons involved in contravening section 16

 

This clause broadens the application of Clause 16 so that it will include people who are indirectly involved in a contravention of Clause 16.  It sets out a number of instances where a person will be taken to have contravened Clause 16, being where that person:

§  attempts to contravene Clause 16;

§  aids, abets, counsels or procures a person to contravene Clause 16;

§  induces or attempts to induce a person to contravene Clause 16;

§  is in any way knowingly concerned in, or party to, a contravention of Clause 16; or

§  conspires to contravene Clause 16.

 

DIVISION 3 - Registration requirements for authorised users

 

Clause 18 – Register of authorised users

 

This clause requires the authorising body to establish and maintain a register of authorised persons for the event.  

 

Subclause 18(2) outlines the details relating to the relevant authorisations granted to an authorised person. Authorisations that are given in writing by the authorising body are to list the indicia and images for an event covered by the authorisation, the circumstances around which they can use those indicia or images, the period of use and any other matter as prescribed by the rules.

 

Under subclause 18(3) if a relevant authorisation ceases to be in force for an authorised person the authorising body must update the register to include the date that the authority ceased to be in effect.

 

The authorising body must publish the register, including any updates on its website and in any other manner prescribed by the rules. Given the seemingly commercial context of Clause 18, it is not likely that much personal information would be disclosed through the process of developing and maintaining the register. Information on the register will in most cases identify a business name as opposed to an individual’s name.

 

Clause 19 State/Territory register provisions may apply

 

This clause does not apply in relation to a major sporting event if the Schedule to this Act or the rules prescribe in relation to the event a provision of a law of a State or Territory that establishes a register relating to authorisations to use expressions or images in relation to the event and the State/Territory register contains information about the relevant authorisation.

 

The Minister for Sport has the power to make rules in relation to Subclause 19(2) provided he/she is satisfied that substantially the same details in relation to each authorised person for the event are required to be included in the State/Territory register as would otherwise be required under the sections 18(2) and (3) of this Act and the State/Territory register is to be published on the internet.

Clause 20 – Person on register taken to be an authorised person

 

This clause recognises that if a person’s details are included in register under Clause 18 or in the State/Territory register under Clause 19 then the person is taken to be an authorised person in relation to the major sporting event and any protected indicia and images referred to in the register are taken to be covered by the relevant authorisation.

 

This will allow a person to rely on the details in the register to see if an authorised person is an official user for the purposes of the provisions of this Act.

 

Clause 21 – Notifying Secretary and Customs CEO of changes to registers

 

The clause ensures the authorising body must give the Secretary of the Department and the Customs CEO written notice of any change to the register referred to in Clauses 18 and 19 as soon as practicable after the change is made.

 

PART 4 – IMPORTATION OF GOODS

 

DIVISION 1 – INTRODUCTION

 

Clause 22 – Simplified outline of this Part

This clause will assist readers to understand the substantive provisions of this Part of the Act, but is not intended to be comprehensive. It is intended that readers rely on the substantive provisions of this Part for more specific detail.

 

DIVISION 2 – OBJECTION TO IMPORTATION AND SEIZURE OF GOODS

 

Division 2 is aligned with recent changes to the seizure powers in the Trade Marks Act 1995 and the Copyright Act 1968 as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 to avoid confusion for individuals, business and those administering the measures.

 

Clause 23 – Notice of objection to importation

 

This clause provides that the official user may give the Customs CEO a written notice objecting to the importation of goods after the date of the notice that have protected indicia or images applied to them, where the designated owner of the goods is not authorised under the Act to use the goods for commercial purposes. 

 

 The notice must be accompanied by any fee or document prescribed by the rules.

 

A notice may be revoked at any time by the objector giving written notice to the Customs CEO.

 

A notice under this clause will cease to be in force when the earliest of one of the following occurs:

§  it is revoked via written notice from the objector to the Customs CEO;

§  at the end of the major sporting event’s protection period; or

§  for a notice given by an authorised person in relation to protected indicia and images covered by the relevant authority – at the end of the period during which the person is authorised to use the protected indicia and images.

 

Clause 24 – Limitation on giving notices of objection to importation

 

This clause determines that a person can only give a notice under Clause 23 in relation to protected indicia or images if :

• the person is an authorised person for the event and the protected indicia and images are covered by the relevant authorisation; or
• the person is an event body for the event and the protected indicia and images relate to that event body.

 

An authorised person for a major sporting event may not give a notice under Clause 19 in relation to protected indicia or images covered by the relevant authorisation except with the written consent of the authoriser who gave the authorisation.

 

Consent is deemed to have been given if the authorised person seeks consent of the authoriser in writing and the authoriser neither gives nor refuses consent before the third business day following the day on which the request was given.

 

 

For the purposes of Clause 23, a reference to the use of protected indicia or images for commercial purposes does not include a reference to use covered by subclause 12(1).

 

Clause 25 – Seizure of goods by Customs CEO

 

This clause provides for the seizure of certain goods by the Customs CEO.  The goods must be manufactured outside Australia, imported into Australia, subject to the control of Customs, and have had protected indicia or images applied to them.

 

The clause provides for the seizure of such goods where there is a notice of objection in force and it appears that the designated owner is not authorised for the purposes of the Act to use the protected indicia or images in relation to the goods.  In these circumstances the Customs CEO must seize the goods, unless he or she has reasonable grounds for believing that the use of the indicia or images would not breach Clause 16. 

The Customs CEO may decide not to seize the goods if the objector has not given the Customs CEO a written undertaking to repay the Commonwealth the expenses that they may incur as a result of seizing the goods.

 

Any goods that are seized under this section must be kept in a secure place.

 

Clause 26 - Notice of seizure

 

This clause requires that where goods are seized under Clause 25 the Customs CEO must notify the designated owner of goods, and each objector, of the seizure.  The notice must:

§  be in writing;

§  identify the goods;

§  state that they have been seized;

§  set out the claim and action period for the goods; and

§  be given as soon as practicable after the seizure.

 

If the notice is given to a designated owner it must give the full name and address of each objector or the objector’s nominated agent or representative.

 

If the notice is given to an objector it must give the full name and address of the designated owner of the goods.

 

The notice to the objector must also state that the goods will be released to the designated owner if they have made a claim for release of the goods, and the objector, or one of the objectors, has not made an application for an injunction under Clause 45 and provides the Customs CEO with written notice of the application.

 

After seizure, the Customs CEO may give additional information to the objector/s that is considered reasonable to assist the objector/s to identify the designated owner. 

 

Where the objector is bound by the Privacy Act 1988, the requirements of the Privacy Act in relation to the handling of personal information apply to the objector. As a result, the ability of the objector to use the personal information provided by the Customs CEO will be restricted, particularly in regards to secondary purposes.

 

Clause 27 – Inspection, release etc of seized goods

 

This clause outlines the provisions for inspection and/or release of seized goods by an objector or the designated owner. The Customs CEO may permit the objector to have access to inspect samples of seized goods.

Under certain circumstances, a sample of seized goods may be removed and released to the objector or the designated owner on the authority of the Customs CEO, pending relevant undertakings being provided. The undertaking will provide that the person removing the sample will return the sample at a specified time and take reasonable care to prevent damage to the goods.

 

If the Customs CEO allows for the release of sample goods, the Commonwealth is not held liable for any loss or damage. 

 

DIVISION 3 – FORFEITURE OR RELEASE OF SEIZED GOODS

 

Clause 28 – Consent to forfeiture of seized goods

 

This clause provides that the designated owner of goods may, at any time before an objector makes an application for an injunction under Clause 45, consent to the goods being forfeited to the Commonwealth.

 

Such consent must be given through written notice to the Customs CEO. 

Clause 29 – Claim for release of seized goods

 

This clause provides for the designated owner of seized goods to make a claim for release of seized goods, within the claim period.

The claim for release must include all required information and be in a form as prescribed by the rules.

Clause 30 – Seized goods not claimed are forfeited

 

This clause provides for goods not claimed within the claim period to be forfeited to the Commonwealth. This ensures that Customs is not required indefinitely to store goods that the importer has lost interest in.

Clause 31 – Late claim for the release of seized goods

 

This clause provides the Customs CEO with the discretion to accept a late claim for release of the seized goods after the end of the claim period, provided there have been no injunctions under Clause 45 and the CEO considers it reasonable in the circumstances and the goods have not been destroyed under Clause 36.

An application can be made to the Administrative Appeals Tribunal if the Customs CEO refuses to allow the late claim and release the seized goods. This provides aggrieved parties with an accessible and inexpensive process for challenging such decisions.

 

Clause 32 – Objector to be notified of claim

 

This clause requires the Customs CEO to notify the objector of the claim for release and permits the CEO to provide the objector with information provided on the claim (such as the current address) identifying the designated owner, or other person who made arrangements for the goods to be brought into Australia.

Clause 33 – Release of seized goods

 

This clause provides that the Customs CEO must release the goods to the designated owner if:

·         each objector consents; and

·         the goods have not been disposed of under Clause 31;

 

The Customs CEO may release goods to the designated owner if:

·         the Customs CEO becomes aware of information that shows the goods are not infringing and no proceedings have been instituted.

 

The Customs CEO must also release the goods to the designated owner if:

• The designated owner has made a claim for release;

·         the objector does not institute infringement proceedings within the action period; or

·         where infringement proceedings are instituted and a court does not, within 20 working days, order the Customs CEO to retain the goods (i.e. until the proceedings are finalised). 

 

Clause 34 – Forfeiture or release of seized goods – by court following application for injunction

 

This clause sets out different action that may be taken by a relevant court, in the event that an objector in relation to seized goods makes an application for an injunction under Clause 45. 

 

Persons demonstrating sufficient interest in the proceedings may be joined as respondents.  A prescribed court may order that seized goods be released to their designated owner (with or without conditions), or that they be forfeited to the Commonwealth. 

 

If the court decides that an injunction should not be granted, it may order that the objector compensate the designated owner or other respondent for loss or damage attributable to the period on or after the day the objector made the application for the injunction.

 

The Customs CEO is bound to comply with the Court orders.

 

Clause 35 – Goods released but not collected are forfeited

 

This clause provides that goods released to the designated owner, but not collected, are forfeited to the Commonwealth if the designated owner does not take possession within 90 days of the release.

Clause 36 – Disposal of goods ordered to be forfeited

 

This clause provides that any goods that are forfeited to the Commonwealth are to be disposed of in a manner prescribed in the rules or as the Customs CEO directs.

 

Goods forfeited under Clause 30 must not be disposed of until 30 days after their forfeiture.

 

Despite forfeiture of seized goods to the Commonwealth a person may apply to a relevant court under this section for compensation for the disposal of goods. A right to compensation exists if:

• the use by a person of the protected indicia and images applied to the goods for commercial purposes would not have contravened Clause 16; and
• the person established to the satisfaction of the courts that he/she is the owner of the goods immediately before they are forfeited and that there were circumstances providing a reasonable excuse for failing to make a claim to release the goods.

 

If a right to compensation exists under Subclause (4) the court may order payment by the Commonwealth of an amount equal to the market value of the goods at the time of their disposal.

Clause 37 – Power of Customs CEO to retain control of goods

 

This clause prohibits the Customs CEO from releasing or disposing of seized goods, or taking action to give effect to a court order under Clause 34, if the CEO is required or allowed to retain control of the goods under any other law of the Commonwealth.

 

DIVISION 4– MISCELLANEOUS

 

Clause 38 – Failure to comply with undertaking etc.

 

This clause recognises that if an amount payable under an undertaking in relation to the goods covered by a notice under Clause 23 is not paid in accordance with the undertaking the Customs CEO may decide not to seize the goods covered by the notice until the outstanding debt has been paid.

 

Any amount not paid under an undertaking is a debt due by the objector/s to the Commonwealth and may be recovered by an action taken in a relevant court.

 

Clause 39 – Insufficient security

 

This clause provides that if the security given under Subclause 25(4) by an objector to the importation of goods is not sufficient to meet the expenses incurred by the Commonwealth as a result of action taken by the Customs CEO under Division 2 of this Part, then the objector(s) must repay the difference between the expenses incurred and the security given.  For the sake of clarity, Subclause 25(2) provides that the Customs CEO is not required to seize goods if the objector has not given security that the CEO considers sufficient to reimburse the Commonwealth for reasonable expenses that may be incurred if the goods were seized.

 

Clause 39 recognises the possibility that an objector might give security that the Customs CEO considers sufficient at the time, but which later proves to be insufficient in light of expenses actually incurred as a result of the CEO’s actions.  Under paragraph 39(2)(b), the Commonwealth could take action in any relevant court to recover the debt. 

 

Clause 40 – Commonwealth not liable for loss etc. suffered because of seizure

 

This clause excludes the Commonwealth from liability for any loss or damage resulting from the Customs CEO’s seizure or failure to seize goods, or from the release or disposal of any seized goods.

 

Clause 41 – Determinations about owners of goods

 

This clause provides a mechanism by which the Customs CEO or an officer of Customs (within the meaning of subsection 4(1) of the Customs Act 1901) may determine a person to be the owner of goods for the purposes of paragraph (b) of the definition of “designated owner” set out in Clause 9 of the Act. 

 

The CEO or an officer of Customs will only be able to make such a determination where the person is an owner (within the meaning of subsection 4(1) of the Customs Act 1901) of the goods. 

 

Clause 42 – Notice to Customs CEO of imports by official users

 

This clause is designed to avoid unnecessary delay in the importation of goods by (or for) the official users, by ensuring that the Customs CEO has advance knowledge of such importation.

 

The clause provides that where goods with protected indicia or images applied to them are proposed to be imported by or for the authorising body or the authorised persons, within the event protection period then the authorising body must provide a written notice to the Customs CEO specifying the indicia or images so applied.  The notice must contain sufficient detail to allow the CEO to identify the goods. 

 

Clause 43 – Modification in relation to Norfolk Island etc.

 

This clause provides that the application to Norfolk Island, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands of this Part of the Act may be modified or adapted by the rules. 

 

PART 5 – REMEDIES

 

Clause 44 – Simplified outline of this Part

 

This clause will assist readers to understand the substantive provisions of this Part of the Act, but is not intended to be comprehensive. It is intended that readers rely on the substantive provisions for more specific detail.

 

Clause 45 – Injunctions

 

This clause provides for a relevant court to grant an injunction, in certain circumstances, to restrain a person from engaging in conduct that contravenes Clause 16.

 

Such an injunction may only be granted on the application of the official user for the major sporting event.  An injunction granted on the application of a person who is an official user, other than the authorising bodies, may only relate to the indicia or images to which the person’s authorisation relates (the authorising bodies are excluded because their authorisation will not be limited). 

 

The powers conferred on the court by this section are in addition to, and not in derogation of, any other powers of the court, whether conferred by this Act or otherwise.

 

In this context, use of an indicium sufficiently close to a relevant protected indicium is taken to be use of that protected indicium.

Clause 46 – Interim injunctions

 

This clause provides that a relevant court may grant an interim injunction pending the determination of an application for injunction under Clause 45, and that a contravention of Clause 16 is to be taken to have caused immediate and irreparable damage to the applicant.  The latter point is intended to guide a court in the exercise of its discretion under this section.

 

Clause 47 – Corrective advertisements

 

This clause provides that a court, upon the application of the authorising body, may make an order requiring a person to publish a corrective advertisement (at that person’s expense) if the court is satisfied that the person has contravened Clause 16.  The order must specify the means and times of the corrective advertisement.

 

Clause 48 – Damages or accounts of profit

 

This clause provides that the official user may seek damages or an account of profits to cover loss or damage caused by a person acting in contravention of Clause 16, provided that the action is brought within three years of the contravention Under Subclause 48(2) the relief that a court may grant in an action is at the option of the official user, either damages or an account of profits not both.

 

A request under Clause 49 for consent to bring an action under this section must be given before the end of the protection period for the event.

 

In the case of an authorised person, the relevant consent under Clause 16 must not be sought later than the working day preceding the end of the protection period for the event.

 

Subclause 48(6) states that a plaintiff may not bring an action against a person under this clause in relation to the use of protected indicia or images if the plaintiff has already brought an action against the person under state/territory legislation as set out in the Schedules or prescribed in the Rules in relation to that use.  Subclause 48(7) is a similar provision designed to prevent a plaintiff from continuing an action against a person under Clause 48 if they bring an action against the person under state/territory legislation.  Subclauses 48(6), (7) and (8) are intended to reduce the likelihood of a plaintiff double dipping by seeking damages or an account of profits under both the Commonwealth and any state/territory legislation.

 

Subclause (8) states that for the purposes of Subclauses (6), (7) and (8) a provision of a law of a State or Territory law is deemed to be a State/Territory remedy provision that relates to a major sporting event if the provision is specified in the schedule to this Act and the provision is prescribed in the Rules.

 

Clause 49 – Consent for authorised persons pursue remedies

 

This clause provides that the written consent of the authorising body is required before a person may:

• give a notice of objection to importation under Clause 23; or
• make an application for an injunction under Clause 45; or
• bring an action for damages or an account of profits under Clause 48.

 

This clause provides that if any authorised person (as defined in Clause 8) gives the authorising body written request for consent under Clause 14, and the authorising body does not give consent or refuse to consent before the end of the third working day following the day on which the request was given, then the authorising body will be taken to have provided consent.

 

This clause is intended to provide authorised persons with clarity, within an acceptable timeframe, as to their rights under the Act.

 

Clause 50 – Remedies under this Part are additional

 

This clause provides that remedies under other Commonwealth, State or Territory laws are not excluded by this Part.  This is subject to Subclauses 48(6), (7) and (8), which prevent a person commencing or continuing and action seeking damages or an account of profits under Clause 48 if they have previously commenced, or commence, an action against the person under state/territory legislation as set out in the Schedules or prescribed in the Rules.

 

The remedies provided under this Part are in addition to the remedies provided by the sections 18, 29(1)(g) and (1)(h)) of the Australian Consumer Law.

 

PART 6 – GROUNDLESS THREATS

 

Clause 51 – Simplified outline of this Part

 

This clause will assist readers to understand the substantive provisions of the Act, but is not intended to be comprehensive. It is intended that readers rely on the substantive provisions of this Part for more specific detail.

 

Clause 52 – Groundless threats of legal proceedings

 

This clause is designed to provide a safeguard against groundless threats of legal proceedings.  It provides that if the official user threatens to make an application or bring an action against a person on certain grounds relating to contravention of Clause 16, any person aggrieved by the threat may bring an action against the authorising body or authorised person.

 

A court may, in such an action, declare that the official user had no grounds for making the threat, and grant an injunction restraining the party from continuing to make the threat.  The court may also award damages to the aggrieved person for losses suffered as a result of the threat.

 

If the person making the threat has in fact made an application or brought an action under Part 5 against a threatened person, the threatened person may not bring or continue an action under this clause.

 

Subclause 52(6) provides a defence to an action under this clause if the conduct of the threatened person (to which the threat relates) does in fact contravene Clause 16 (i.e. it constitutes unauthorised use of protected indicia or images for commercial purposes).

 

If a threatened person brings an action under Clause 52, and the official user would be entitled to make an application or bring an action against a person for contravening Clause 16, then the official user may make a counterclaim for any relief that may be available under Part 5.

 

Subclause 52(7) provides that the provisions of Parts 4 and 5 of the proposed Act will apply as if a counterclaim was an application or action made or brought under Part 5.

 

This Clause ensure any actions for an act done in a professional capacity on behalf of a client does not make a barrister or solicitor of the High Court, or of the Supreme Court of a State or Territory, liable to an action.

 

PART 7 - MISCELLANEOUS

 

Clause 53 - Simplified outline of this Part

 

This clause will assist readers to understand the substantive provisions of the Act, but is not intended to be comprehensive. It is intended that readers rely on the substantive provisions of this Part for more specific detail.

 

Clause 54 – Copyright, design and trade mark rights

 

This clause provides that the proposed Act is not intended to affect the operation of the Trade Marks Act 1995, Copyright Act 1968 or the Designs Act 2003, including any rights conferred or liabilities imposed by or under those Acts.

 

Clause 55– Concurrent operation of State and Territory laws

 

This clause provides that the Parliament intends that the Act would not apply to the exclusion of a State or Territory law to the extent that the law is capable of operating concurrently with the proposed Act.

 

This Part is not intended to exclude or limit the concurrent operation of a law of a State or Territory that does one or more of the following:

• Prohibits conduct that would contravene Clause 16 of the Act;
• Prohibits the use of an expression or image in relation to a major sporting event for purposes or in circumstances where that use would not contravene Clause 16 of this Act;
• prohibit the use of different expressions and images in relation to the major sporting event to the expressions or images that constitutes the event’s protected indicia or images under this Act;

 

Subclause (2) applies even if the law of a State or Territory does any or all of the following:

• has the effect that a person whose conduct contravenes a prohibition in that law against the use of an expression or image in relation to a major sporting event is liable to an offence against that law; or another liability that is not provided for under this Act.
• provides different remedies to enforce a prohibition in that law in relation to a major sporting event against the use of an expression or image; or
• requires different details to be included on the register that is required to be established under that law in relation to the major sporting event to the details that are required on a register established under this Act.

 

Clause 56 – Constitutional safety net - acquisition of property

 

This clause has no effect to the extent to which operation of the Act would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph) and the acquisition of property would be invalid because of paragraph 51(xxxi).

 

Clause 57 – Implied freedom of political communication

 

This Act does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

 

Clause 58 – Rules

 

This clause provides that the Minister may make by legislative instrument rules prescribing matters required or permitted by the proposed Act to be prescribed, or matters necessary or convenient to be prescribed for carrying out or giving effect to the Act.  

 

SCHEDULES

 

SCHEDULE 1 – AFC ASIAN CUP 2015

 

As part of supporting the delivery of the AFC Asian Cup 2015 the Australian Government has agreed to provide certain protections to the Asian Football Confederation regarding intellectual property and rights protection.

 

Item 1 – AFC Asian Cup 2015 is a major sporting event

 

This item identifies the Asian Football Confederation Asian Cup 2015 as a recognised major sporting event under this legislation.

 

Item 2 – Authorising body for AFC Asian Cup 2015

 

This item identifies the Asian Football Confederation as the event owner and owner of the intellectual property rights as the authorised body for the purposes of the AFC Asian Cup 2015.

 

Item 3 – Event bodies for the AFC Asian Cup 2015

 

This item identifies the key organisations that are recognised as event bodies for the AFC Asian Cup 2015 as;

• Asian Football Confederation - the regional body that has responsibility for the direction and control of the AFC Asian Cup 2015;
• Local Organising Committee AFC Asian Cup 2015 Australia – the local organising committee which is a wholly owned subsidiary of Football Federation Australia; and
• Football Federation Australia – the national sporting organisation which won the rights to host the event in Australia.

 

Item 4 – Protected indicia for the AFC Asian Cup 2105

 

This item provides the agreed list of protected words and combinations of words covered by this legislation.

 

The agreed lists have been developed in consultation with the event bodies and IP Australia.

 

The rules may prescribe additional words, phrases or expressions to be added to the schedule.

 

Item 5 – Protected indicia and images relate to an event body for the AFC Asian Cup 2015

 

This item states that protected indicia and images for the AFC Asian Cup 2015 relate to the authorising body, except as prescribed by the rules. If they relate to any other event body, this will also be prescribed in the rules.

Item 6 – Protection period for the AFC Asian Cup 2015

 

This item identifies the period for which the protection is provided for the protected indicia and images. The protection commences on commencement of the Act and ceases to have effect on 30 June 2015 or earlier as prescribed by the rules.

 

 

 

SCHEDULE 2 – ICC CRICKET WORLD CUP 2015

 

As part of supporting the delivery of the ICC Cricket World Cup 2015the Australian Government has agreed to provide certain protections to the International Cricket Council regarding intellectual property and rights protection.

 

Item 1 – ICC Cricket World Cup 2015 is a major sporting event

 

This item identifies the International Cricket Council Cricket World Cup 2015 as a recognised major sporting event under this legislation.

 

Item 2 – Authorising body for ICC Cricket World Cup 2015

 

This item identifies the International Cricket Council Development (International) Ltd as the owner of the intellectual property rights as the authorised body for the purposes of the ICC Cricket World Cup 2015.

 

Item 3 – Event bodies for the ICC Cricket World Cup 2015

 

This item identifies the key organisations that are recognised as event bodies for the ICC Cricket World Cup 2015 as;

• International Cricket Council (ICC) - the international sporting organisation that has responsibility for the direction and control of the ICC Cricket World Cup 2015;
• ICC Development (International) Ltd – the body that owns the intellectual property rights to any ICC sanctioned events;
• Cricket World Cup 2015 Ltd – the local organising committee established as a public company; and
• Cricket Australia – the national sporting organisation which won the rights to co-host the event with New Zealand Cricket.

 

Item 4 – Protected indicia for the ICC Cricket World Cup 2015

 

This item provides the agreed list of protected words and combinations of words covered by this legislation.

 

The agreed lists have been developed in consultation with the event bodies and IP Australia.

 

The rules may prescribe additional words, phrases or expressions to be added to the schedule.

 

Item 5 – Protected indicia and images relate to an event body for the Cricket World Cup 2015

 

This item states that protected indicia and images for the ICC Cricket World Cup 2015 relate to the authorising body, except as prescribed by the rules. If they relate to any other event body, this will also be prescribed in the rules.

Item 6– Protection period for the ICC Cricket World Cup 2015

 

This item identifies the period for which the protection is provided for the protected indicia and images. The protection commences on commencement of the Act and ceases to have effect on 31 March 2016 or earlier as prescribed by the rules.

 

SCHEDULE 3 – GOLD COAST 2018 COMMONWEALTH GAMES

 

As part of supporting the delivery of the Gold Coast 2018 Commonwealth Games the Australian Government has agreed to provide certain protections to the Commonwealth Games Federation regarding intellectual property and rights protection.

 

Item 1 – Gold Coast 2018 Commonwealth Games is a major sporting event

 

This item identifies the Gold Coast 2018 Commonwealth Games as a recognised major sporting event under this legislation.

 

Item 2 – Authorising body for Gold Coast 2018 Commonwealth Games

 

This item identifies the Commonwealth Games Federation as the event owner and owner of the intellectual property rights as the authorised body for the purposes of the Gold Coast 2018 Commonwealth Games.

 

Item 3 – Event bodies for the Gold Coast 2018 Commonwealth Games

 

This item identifies the key organisations that are recognised as event bodies for the Gold Coast 2018 Commonwealth Games as;

• Commonwealth Games Federation - the international sporting organisation that has responsibility for the direction and control of the Commonwealth Games;
• The Gold Coast 2018 Commonwealth Games Corporation (GOLDOC) – the local organising committee established under the Commonwealth Games Arrangements Act 2011 (QLD); and
• Australian Commonwealth Games Association – the national sporting organisation which won the rights to host the event in Australia.

 

Item 4 – Protected indicia for the Gold Coast 2018 Commonwealth Games

 

This item provides the agreed list of protected words and combinations of words covered by this legislation.

 

The indicium “Australian Commonwealth Games Association” relates to the body known as the Australian Commonwealth Games Association.

 

The indicium “Commonwealth Games Federation’ relates to the body known as the Commonwealth Games Federation.

 

The agreed lists have been developed in consultation with the event bodies and IP Australia.

 

The rules may prescribe additional words, phrases or expressions to be added to the schedule.

Item 5 – When protected indicia relate to an event body for the Gold Coast 2018 Commonwealth Games

 

This item clearly identifies the protected indicia relating to each of the three event bodies for the Gold Coast 2018 Commonwealth Games.

• Gold Coast 2018 Commonwealth Games indicia relate specifically to the Gold Coast 2018 Commonwealth Games Corporation;
• Australian Commonwealth Games Association indicia relate specifically to the Australian Commonwealth Games Association; and
• Commonwealth Games Federation indicia relates specifically to the Commonwealth Games Federation.

 

Any indicia prescribed in the rules relates to the event body as prescribed in the rules.

 

Item 6 – When protected images relate to an event body for the Gold Coast 2018 Commonwealth Games

 

This item clearly identifies the protected images relating to each of the three event bodies for the Gold Coast 2018 Commonwealth Games.

• Gold Coast 2018 Commonwealth Games images relate specifically to the Gold Coast 2018 Commonwealth Games Corporation;
• Australian Commonwealth Games Association images relate specifically to the Australian Commonwealth Games Association; and
• Commonwealth Games Federation images relates specifically to the Commonwealth Games Federation.

 

Any images prescribed in the rules relates to the event body as prescribed in the rules.

 

Item 7 – Protection period for Gold Coast 2018 Commonwealth Games

 

This item identifies the period for which the protection is provided for the protected indicia and images. The protection commences on commencement of the Act and ceases to have effect on 31 December 2018 or earlier as prescribed by the rules.

 

Item 8 – Avoiding inconsistency between this Act and the Commonwealth Games Arrangements Act 2011 (QLD) (the ‘Queensland Act’)

 

This item identifies that for paragraph 16(5)(a) of this Act, that sections 51-56 of the Queensland Act are specified in relation to the Gold Coast 2018 Commonwealth Games.

 

Item 9 - Applying register provisions of the Commonwealth Games Arrangements Act 2011 (QLD)

 

This item enables Section 57 of the Queensland Act to deal with registration of authorised persons under Clause 19 (1)(a) of this Act. The effect of this clause is that GOLDOC is not required to keep a separate register under Clause 18 of this act.

 

Item 10 – Limitation for actions for damages or account of profits

 

This item identifies that for the purposes of paragraph 48 (6of this Act, that Part 4 of the Queensland Act are specified in relation to the Gold Coast 2018 Commonwealth Games.