Today’s question relates to linking emergency service brand to private products. What has caused my correspondent’s concerns is a video promoting the Astrien navigation and sitrep tool – http://astrien.com.au/.
The video is on YouTube https://www.youtube.com/watch?v=647gHFVZ1J0
The high quality video has RFS members in uniform and driving an RFS appliance to promote the virtue of the device. The notes with the video say ‘The Astrien SITREP Aid and Navigator is a compact display developed for volunteer members of the NSW RFS.’
My correspondent asks:
1) is it legal for a private company to use NSW Government equipment and logos to promote a product for profit without explicit permission, and
2) If permission was given, is it legal for the Government as a whole or even just someone at the RFS to give that permission to companies selected possibly arbitrarily?
In answering this question I have no idea what the position of the RFS is with respect to this particular product and whether the RFS has endorsed it and/or given permission for RFS members to appear, in uniform, in the video. I will assume for the sake of the argument that they have not (because if they have, there is no question to answer).
It is probably not legal to use the RFS logo and vehicles without permission. First, the government owns the intellectual property in the logos that appear so their use to promote a product (without permission) would infringe the rights with respect to those logos. I don’t think that’s criminal but it would allow the owner (the government) to seek orders to restrain that behaviour and to get damages if the use of the logos had lead to profit for the vendor (Copyright Act 1968 (Cth) s 36 and 115; see also Rural Fire Service, Service Standard 1.4.2 RFS Brand (23 November 2015).
More interestingly the State Emergency and Rescue Management Act 1989 (NSW) s 63B(2) says:
A person who:
(a) uses or displays emergency services organisation insignia …
with the intention to deceive is guilty of an offence .
This video clearly displays the RFS logos on the members’ uniforms. If the intention is to deceive potential customers, that is to imply that the product has an RFS endorsement that it does not in fact have, then that would be an offence.
Equally a vendor in trade or commerce must not engage in conduct that is misleading and deceptive (Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth), cl 18). Further they must not (cl 29):
(d) make a false or misleading representation that a particular person has agreed to acquire goods or services; or
(e) make a false or misleading representation that purports to be a testimonial by any person relating to goods or services; or
(f) make a false or misleading representation concerning:
(i) a testimonial by any person; or
(ii) a representation that purports to be such a testimonial;
relating to goods or services; or
(g) make a false or misleading representation that goods or services have sponsorship, approval…; or
(h) make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation;…
Again noting that I do not know what the attitude of the RFS is to this product, and assuming that the RFS has not endorsed it, then aspects of the video could well imply that the RFS approves or endorses the product and is in effect giving a testimonial as to its value.
My answer to question 1 is no, it is not legal for a private company to use NSW Government equipment and logos to promote a product for profit without explicit permission.
As for question 2 I can’t see why the government or the RFS could not endorse a product if it wanted to but whether it wants to or should is another question. Answering this question requires knowledge of the law of government contracting which is not an area I’m familiar but so far as I know, there is no illegality that I can see if an appropriately delegated officer holder in the RFS has approved this video and endorsed the product in question.