The new Ambush Marketing discipline comes into force

With the conversion of Law Decree 16/2020 into law, Italy has adopted a specific discipline on Ambush Marketing, to protect the organizers of sporting events and exhibitions, sponsors and consumers.

With the Decree 16/2020 titled "Urgent provisions for the organization and holding of the Olympic and Paralympic Winter Games Milan Cortina 2026 and the ATP Turin 2021 - 2025 finals, as well for the prohibition of parasitic activities" (converted with Law no. 31 of 8 May 2020, published in the Official Gazette on 12 May 2020), Italy has finally provided itself with an ad hoc discipline aimed at regulating and sanctioning the so-called Ambush Marketing.

The objective of those who carry out ambush marketing is in fact to be able to associate their brand to major events and manifestations, thus benefiting from the resonance that results, without any authorization from the organization and without incurring in the necessary licensing costs.

Although this is a relatively recent phenomenon with changing contours, as already recognized by Italian case law, these practices jeopardize the sponsoring business activity and the underlying competitive principles. Past attempts to remedy such parasitic conducts were conceived for single events and proved not appropriate (reference is made to Law no. 167 of 17 August 2005, "Measures for the protection of the Olympic symbol in relation to the 'Torino 2006' Winter Games"); this is why, with important sporting events approaching (final phase of the 2020 European Football Championship, Winter Olympics dl 2026), the legislator's intervention appears timely.

Art. 10 of Legislative Decree no. 16/2020 therefore prohibits any "parasitic conduct" in relation to the organization of sports events or exhibitions of national or international importance, not authorized by the organizers and aimed at obtaining an economic or competitive advantage:

"(a) the creation of a link, even indirect, between a trade mark or other distinctive sign and an event [...] liable to mislead the public as to the identity of the official sponsors;

(b) false statement or misrepresentation in advertising of being an official sponsor of an event [...];

(c) the promotion of its trade mark or other distinctive sign by any action, not authorized by the organizer, which is likely to attract the attention of the public, taken during an event [...] and which is likely to create the false impression in the public that the author of the conduct is a sponsor of the event [...];

(d) the sale and advertising of products or services unlawfully identified, even in part, with the logo of an event [...] or with other distinguishing marks liable to mislead the public as to the logo itself and to create an erroneous perception of any connection with the event or with the organizer or persons authorized by the organizer”.

The prohibition starts "from the date of registration of the official logos, brands or trademarks of the events [...] until the 180th day following the official date of the end of the same" and is in any case without prejudice to "conduct carried out in execution of sponsorship contracts concluded with individual athletes, teams, artists or authorized participants".

However, ambush marketing can be declined in the most varied forms, not all included in the aforementioned discipline (e.g. insurgent ambushing - i.e. surprise street-style promotions). However, repression of conducts escaping the new discipline may be intercepted by general rules on trademark infringement (in particular through the protection of well-known signs provided for by art. 8 of the Intellectual Property Code, which was amended, in paragraph 3, with the extension of protection to "images that reproduce trophies") and through unfair competition (2598 et seq. civil code).

A further novelty is given by the strengthening of the repressive apparatus: against ambush marketing, in addition to the already known civil law remedies, the Italian Competition Authority can now impose administrative sanctions (Art. 10 Decree Law 16/2020) between 100,000 Euros and 2.5 million Euros.

In summary, the new repressive legislation on ambush marketing, even if covering cases already partially sanctioned, strengthens the deterrent effect against "ambushes", to protect both brand sponsors and consumers.

The content of this article has only informative value and does not constitute a professional opinion.

For further information contact Paolo Lazzarino.