Italian Competition Authority issues first resolution on ambush marketing

• Italy

• Competition, EU and Trade

28-04-2022

On 29 March 2022, the Italian Competition Authority (ICA) imposed an administrative fine of EUR 100,000 against Zalando SE (Zalando) for having carried out a “parasitic advertising” or “ambush marketing” activity in breach of Italian law.

Brief notes on ambush marketing

Parasitic advertising - or “ambush marketing” - consists in the unlawful association of the image, brands or products of a company with a national and/or international exhibition/sports event of particular media resonance, in the absence of any sponsorship, license or similar relationship with the event’s organizer. In other words, where a company unduly associates itself to the event to exploit its media appeal, without bearing the relative economic costs.

Since 13 May 2020, ambush marketing has been regulated by Law-Decree No. 31/2020, which also contains urgent provisions for the organization of the 2026 Winter Olympics and of the 2021-2025 ATP Finals. Article 10 of this legislation prohibits:

(a) the creation of a link, even indirect, between the trademarks or other distinctive signs and the event, likely to mislead consumers about the identity of the official sponsors;

(b) the false representation or statement in advertising to be an official sponsor of the event;

(c) the promotion of trademarks or other distinctive signs by actions not authorized by the event’s organizer, likely to attract the attention of the public and create the impression that the company is the sponsor of the event;

(d) the sale and advertising of products or services improperly distinguished, even only in part, by event logos or other distinctive signs likely to mislead the public.

Moreover, Article 11 establishes a time limit for the application of ambush marketing bans being from the date of registration of the logos, brands or official trademarks of the sports or exhibition event, and up to 180 days after the official end date of the event.

The ICA is the authority which enforces ambush marketing and it can impose fines of between Euro 100,000 and 2,5 million, unless the parasitic conducts constitute a crime or more serious administrative offence.

The case PV16 – Zalando- Euro 2020 Ad

The ICA's investigation against Zalando originated from a complaint made by the Italian Finance Police on 8 June 2021. This claimed that Zalando circulated, in a square in Rome where the official Euro 2020 area was set up, a large poster displaying the expression “Chi sarà il vincitore?” (Who will be the winner?) along with the name and logo of Zalando (which appeared inside a white football shirt) and the flags of the 24 nations participating in Euro 2020.

Zalando argued that: (i) the contested advertising campaign was part of a broader advertising initiative aimed at conveying a message to reject any hostility and opposition between peoples and individuals; (ii) the Law-Decree would not be applicable to Euro 2020, as it refers exclusively to the 2026 Winter Olympics and the ATP tennis Finals; (iii) the content of Zalando's advertising initiative did not contain explicit references to Euro 2020 or the reproduction of trademarks or other registered intellectual property rights directly related to the Euro 2020 event.

Nevertheless, the ICA, having specified that the scope of the provisions on ambush marketing includes all sporting events of national or international importance, concluded that Zalando’s advertising poster (displayed from June 1 to June 8 of 2021) was capable of creating a link between the name and brand Zalando, on the one hand, and the football event, on the other, and of misleading consumers by suggesting that Zalando was the official sponsor of the event. For this reason, the ICA imposed a fine of Euro 100,000 on Zalando.

This is the first ICA investigation into ambush marketing activities. In light of the principles stemming from the ICA’s reasoning, companies should examine and evaluate in detail any proposed advertising campaign, which is directly linked to or refers to a sport event or other event of national and/or international relevance, to assess whether the campaign may mislead consumers regarding the company’s link with the event. Failure to do so may lead to an investigation by the ICA and reputational damage.

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