Foul play - first enforcement of Italian Decree on ambush marketing

On 19 April 2022, the first-ever decision based on Italian Law Decree No. 16/2020 – regulating ambush marketing – was issued. It fined the multinational e-commerce company Zalando SE ("Zalando") for an ambush marketing conduct that took place during the UEFA 2020 football event – which was held in 2021, due to the Covid pandemic.

Background

In June 2021, Zalando placed a large billboard in the square of Rome where the official Football Village of the "UEFA Euro 2020" was set up by UEFA. Zalando, was not an official sponsor or partner of such event.

The billboard included the claim: "Who will be the winner?" as well as the Zalando trademarks, the 24 national flags of the participants of the football event and a white football t-shirt with the well-known Zalando logo:

Zalando1

A few days later, on June 8, 2021 the billboard was replaced with a new one, not challenged in the proceedings. This second billboard raise the same question as the first one (“Who will be the winner?”), but provided a simple answer: "Love always wins", and also included the Zalando trademarks:

Zalando2

Challenges and Zalando’s defenses

The Italian Competition Authority claimed that this conduct amounted to ambush marketing. Zalando’s denied this, claiming that the law regulating ambush marketing would not apply in this case, and that the campaign had a social goal. Its defence was based, in short, on the following arguments:

  • the billboard would have been aimed at raising awareness on key social issues, such as the inclusion of minorities, and at spreading a message of love and unity. The promotional activity would have been linked to its previous social initiatives.
  • Law Decree No. 16/2020 was not enforceable in this case because events such as the UEFA Euro 2020 would be out of scope. Rather, the Law Decree would refer to the Winter Olympic and Paralympic Games in Milan-Cortina 2026 and the ATP finals 2021 – 2025 in Turin.
  • In any case, Law Decree No. 16/2020 must be interpreted narrowly and would not apply here, because the billboard did not depict any official trademark of the event or images – protected by copyright – of its organizers or participants.
  • Finally, the billboard was removed after only 8 days: the alleged unfair conduct rapidly ceased and did not cause any serious damage.

The Decision

The authority rebutted all the defensive thesis of Zalando confirming that Zalando’s conduct was in breach of the Law Decree, and imposed a fine of EUR 100.000.
It stated that the billboard’s overall impression was able to create a link between Zalando and the football event, misleading the public by suggesting that Zalando was an official sponsor of UEFA Euro 2020 or somehow legitimately connected to it.
The authority also clarified that the scope of protection of the Law Decree No. 16/2020 includes all the sports events with national or international relevance. Besides, it stated that any conduct that may create a link, even indirect, with the event and its distinctive sign or that may mislead the public as to the official sponsors of the event, are unlawful under the law.

Comment

The decision reveals that the Italian Competition Authority pays strong attention to the ambush marketing phenomenon. It also reveals that Law Decree No. 16/2020 applies to a wide range of events, and not only to those for which it was originally adopted, i.e. Winter Olympic and Paralympic Games in Milan-Cortina 2026 and the ATP finals 2021 – 2025 in Turin.

Promoters shall carefully consider these limits when conceiving an advertising campaign. Indeed, a campaign that creates a link between the brand and an event may catch the attention of the Authority and turn into a pecuniary sanction. 

 

 

Authored by Maria Luigia Franceschelli and Andrea Schettino.

 

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