AUSTRALIA Law and Practice Contributed by: Sven Burchartz and Jessica Bell, Kalus Kenny Intelex
causes of action need to be relied upon in order to protect a celebrity’s image. These causes of action include: • the tort of passing off; • breach of Australian Consumer Law; • defamation; or • trade mark and copyright infringement. The Australian Consumer Law and the Tort of Passing Off Passing off is a common law tort in Australia, and refers to a situation where one party misrep - resents that their goods or services are associ - ated with the goods or services of another. Similarly, the Australian Consumer Law prohib - its a party from engaging in conduct that could mislead or deceive consumers. In relation to the image of an athlete, this means that any use of an athlete’s image is prohibited if that use could lead consumers to believe that there is a rela - tionship in place between the business and the Sports bodies and athletes can exploit their intellectual property (IP) rights in order to lever - age the value of their brand and to generate rev - enue by licensing those IP rights to third parties. These licensing rights might include the right to apply a registered or unregistered trade mark to goods, services or other advertising materials. Restrictions on Assignment In Australia, there are very few restrictions on assignment of intellectual property. For an assignment of copyright to be valid and enforce - able, that assignment must be in writing by way of a deed or agreement. However, where a trade mark is not registered, the ownership and intel - relevant athlete. 5.4 Licensing Licensing
lectual property rights in the unregistered mark can only be assigned with the goodwill of a busi - ness. Further, where a trade mark is a collective mark – ie, a trade mark that is owned by an associa - tion that allows members to use the mark on their goods or services, it cannot be assigned or transmitted under Australian law. 5.5 Sports Data In Australia, sports data, including both ath - lete and spectator data, is predominantly used by stakeholders to track athlete performance, increase fan engagement and encourage and Many of Australia’s elite sports teams collect and analyse athlete data to identify strengths and weaknesses in any given athlete or a team’s per - formance. Analytics can help athletes and teams understand the key factors that contributed to their winning or losing a game or season. In the AFL, for example, football clubs have developed their own data management systems and have recruited their own teams of data ana - lysts to enable them to determine where they can improve and even how they can win. Fan Engagement Data and analytics are also used in Austral - ian sport to improve the fan experience and to increase fan engagement with a particular sport or team. expand partnerships. Athlete Performance Clubs and sports event organisers use data to create a better experience for fans within an event location (eg, a stadium) by collecting data in relation to ticket sales, spectator movement around the stadium and the purchases made at
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