The Italian Competition Authority sanctions Zalando for ambush marketing

Written By Filippo Ponso and Elena Martini

With order no. 30099 of 29 March 2022, the Italian Competition Authority issued a sanction of € 100,000.00 against Zalando SE, for having carried out a so-called “parasitic advertising activity”, better known as “ambush marketing”. As indicated in this previous post, this is an activity sanctioned by Article 10, paragraphs 1 and 2 a) of Law Decree 16/2020, converted into Law no. 31/2020.

This is the contested practice: in June 2021, Zalando had placed, in the square in Rome hosting the UEFA Euro 2020 “Football Village”, a large billboard clearly referring to the famous football competition:

However, Zalando was not an official sponsor or partner of the event and this advertising message had not been authorised by the event organisers. The Authority therefore considered that such elements, together with the fact that the billboard was in the immediate vicinity of the official Football Village, were capable of generating a link between the distinctive signs of Zalando and the UEFA Euro 2020 event, wrongly leading the public to believe that Zalando was an official sponsor of the event, in breach of Article 10(2)(a) of Law Decree 16/2020.

In its decision, the Authority rejected Zalando’s defence that the provision in question would only be applicable to the Milan-Cortina 2026 Olympic and Paralympic Winter Games and to the Turin 2021-2025 ATP Finals, for which it was promulgated. On the contrary, the Authority noted that Article 10(1) of Law Decree 16/2020 provides in general for the prohibition of “parasitic, fraudulent, deceptive or misleading advertising and marketing activities carried out in connection with the organisation of sporting events or trade fairs of national or international importance that have not been authorised by the organising entities and are aimed at gaining an economic or competitive advantage”; it is therefore not a restriction limited only to the sporting events mentioned by Zalando.

Regarding the quantification of the sanction, the Authority opted for the minimum provided for by law, taking into account several factors: i) the moderate seriousness of the infringement; ii) the limited dissemination of the advertising message, which was only posted in a square in Rome; iii) the limited duration of the infringement, amounting to only seven days; iv) the fact that this was the first application of the infringed legislation.

With this inaugural decision on the subject, the Italian Competition Authority has thus provided its initial guidelines in the field of ambush marketing, to which companies will have to pay increased attention when conducting their advertising campaigns.