Telstra’s “I Go to Rio” Ad: Legal or Illegal Example of Ambush Marketing?

Go to Rio with the Olympics on 7 App

Images of ordinary people jumping over fences, getting ready for a row on the river, kids in judo gear, elderly people on a swim…oh yes they’re watching something on their mobile phones or tablets…and the song is “I Go to Rio.”

To the average viewer in Australia, it’s just another ad during the Olympic season.

At least that’s what the Australian Olympic Committee (AOC) claimed in court over the past year. The AOC has rights to select local sponsorships which goes to funding the development of athletes in Australia. In 2016, they had signed Optus to a ten-year sponsorship, which replaced Telstra as an official sponsor, known as an “Australian Olympic Team Partner.”

With a sponsor spending millions for a long-term relationship with the AOC and the Olympic brand, the AOC has an obligation to protect against so-called ambush marketing, ads or campaigns that associate with the Olympics even though they did not pay for the rights to do so. The AOC viewed this advertisement as a prime example of ambush marketing, and filed a lawsuit against Telstra when they started broadcasting the commercial just prior to the start of the 2016 Rio Olympics.

Part of the issue was the statement made by the voiceover on the commercial: “This August, for the first time ever, you can watch every event in Rio live with the Olympics on Seven app and Telstra on Australia’s fastest mobile network.” In essence, the AOC saw this as piggybacking off of another official sponsor, Seven West Media, which is the network with rights to broadcast the Olympics.

Additionally, the advertisement ended with the text, “Official Technology Partner of Seven’s Olympic Games Coverage.” According to this article in the Sydney Morning Herald, the lawyer representing the AOC explained that Telstra modified that statement and even added a disclaimer that it was not an official sponsor of the Olympic Games, which I presume means that the AOC is arguing Telstra was aware that the audience might be confused  regarding their relationship to the Olympics.

In the end, the Full Court of the Federal Court put an end to the AOC’s fight against Telstra on October 25, 2017 by ending AOC’s appeal against a judgment of a lower court that found in favor of Telstra. Here is the explanation as provided by the Sydney Morning Herald:

The full court agreed with Federal Court judge Michael Wigney who, in regards to the Telstra-Samsung promotion, found “the only hint that the advertisements related in any way to the Rio Olympic Games is the “I go to Rio” soundtrack.”

 “The primary judge found that this reference does not make the advertisement misleading or deceptive as contended by the AOC. We find no error in that conclusion.

The Full Court also upheld Justice Wigney’s finding that a “reasonable person viewing the advertisements would not necessarily know about or recollect Telstra’s previous sponsorship of the Australian Olympic team, let alone turn his or her mind to that fact when viewing the commercial”.

“As to Seven’s advertisements, he (Justice Wigney) found that they simply confirm that Telstra’s sponsorship arrangement is with Seven. Those findings of fact were open to the primary judge,” Full Court judges Andrew Greenwood, John Nicholas and Stephen Burley found.

Why does this all cause concern to the AOC, and perhaps other NOC’s establishing long-term sponsorships? It’s in the first paragraph of the Sydney Herald article:

What is a multimillion-dollar sponsorship worth if your key competitor can muscle in on your exclusive rights?

Not much according to a recent decision by the Full Court of the Federal Court.