[Guest post] Parasitic advertising on UEFA Euro 2020: Italian Competition Authority imposes first sanction for ambush marketing

The IPKat is pleased to host the following contribution by Katfriends Anna Maria Stein and Lorenzo Maniaci (both Eversheds Sutherland) on a recent decision of the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato) which, for the first time, has imposed a sanction in connection with a parasitic advertising activity (ambush marketing).

Here's what Anna Maria and Lorenzo write:

Parasitic advertising on UEFA Euro 2020: Italian Competition Authority imposes first sanction for ambush marketing

by Anna Maria Stein and Lorenzo Maniaci

Ambush Kat

By its decision No. 30099 of 29 March 2022, the Italian Competition Authority (ICA) imposed an administrative fine of EUR 100,000 against Zalando SE ('Zalando'), for carrying out a parasitic advertising activity - pursuant to Article 10, paragraph 1 and 2(a) of the Law-Decree No. 16 of 11 March 2020 ('Law-Decree No. 16/2020'), converted with amendments, by Law No. 31 of 8 May 2020 ('Law No. 31/2020') - in connection with the European football competition of UEFA Euro 2020, which took place in June 2021.

Brief notes on ambush marketing

Parasitic advertising - or ‘ambush marketing’ - consists of 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, licence or similar relationship with the event’s organizer. In other words, the company that carries out ambush marketing activities unduly relates itself to the event in order to exploit its media appeal, without bearing the relative economic costs.

Since May 2020, ambush marketing has been regulated in a comprehensive manner in Italy by Law No. 31/2020, which converted - with amendments – Law-Decree No. 16/2020, also containing urgent provisions for the organization of the 2026 Winter Olympics and of the 2021-2025 ATP Finals.

In particular, pursuant to Article 10 of the aforementioned legislation, the following conducts are regarded as being parasitic advertising and are, therefore, prohibited:

• 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;
• the false representation or statement in advertising to be an official sponsor of the event;
• the promotion of trade marks or other distinctive signs by actions not authorized by the event’s organizer, likely to attract the attention of the public and unduly create the impression that the undertaking at hand is a sponsor of the event;
• the sale and advertising of products or services unduly covered, even only in part, by event logos or other distinctive signs likely to mislead the public.

Article 11 of Law-Decree No. 16/2020 establishes a time limit for the application of ambush marketing bans, envisaging that they shall apply 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.

In such cases, the ICA may impose fines of between EUR 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 - culminating in the fine of 29 March 2022 - originated from a complaint submitted by the Finance Police on 8 June 2021, concerning Zalando's conduct consisting of the circulation, in a square in Rome where the official Euro 2020 area was set up, of a large poster displaying the expression “Chi sarà il vincitore?” (Who will be the winner?) alongside the name and logo of Zalando (which appeared inside of a white football shirt) and the flags of the 24 nations participating in Euro 2020.

Upon receiving the notice of initiation of the investigation for a possible breach of Article 10, paragraphs 1 and 2(a), of Law-Decree No. 16/2020, Zalando argued on the lawfulness of its conduct, claiming that: (i) the contested advertising campaign was part of a broader advertising initiative aimed at conveying the message of rejection of 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 IP rights registered or otherwise directly related to the Euro 2020 event.

Having specified that the scope of the provisions on ambush marketing includes all sporting events of national or international importance, the ICA concluded that the set of elements included in the advertising poster displayed from June 1 to June 8 of 2021 was capable of (i) creating a link between the name and brand of Zalando, on the one hand, and the football event, on the other, and (ii) misleading consumers by suggesting that Zalando was, contrary to the truth, an official sponsor of the event. For this reason, ICA imposed a fine of EUR 100,000 against Zalando.

This is the first ICA’s investigation for ambush marketing conducts. In light of the principles stemming from the ICA’s reasoning, undertakings should examine and evaluate in detail any advertising campaign directly linked or referred to a sport event or other events of national and/or international relevance, and undertake an assessment of whether such a campaign may be misleading in terms of ambush marketing regulations.