In view of the 2026 Milan-Cortina Olympic Games, Italian legislators have been revisiting the legislation currently in place and have brought into force some additional and useful measures to protect official advertisers of the Olympics against the so-called ‘ambush marketing’.
On 13 May 2020, Law 31/2020 came into force amending and converting the Law Decree of 11 March 2020, no. 16, which set out urgent provisions relating to the organisation and holding of the 2026 Milan Cortina Winter Olympic and Paralympics Games and the 2021-2025 Turin ATP finals, as well as for the prohibition of parasitic activities.
The origin of the term ‘ambush marketing’ is rooted in the activities which took place around the 1984 Olympic Games in Los Angeles where Kodak sponsored numerous TV programs on the Olympic Games as well as famous American athletes. Kodak thus managed to fill the ‘gaps’ left by the official sponsor, FUJI, thereby giving the impression that it too, was an official sponsor of the Games, although this was not the case. Since then there have been various examples of similar activities both relating to sporting events in Italy as well as during almost all Olympic Games. Famous examples include the Barcelona Olympic Games in 1992, officially sponsored by Visa, whilst however American Express ran a number of TV ads using the tagline ‘You don’t need a Visa to visit Spain’.
In an attempt to contain this phenomenon, the International Olympic Committee guidelines requested future hosting countries to adopt special preventative measures. The issue was first tackled by Italian Legislators with Law 167/2005, issued in view of the 2006 Turin Winter Olympic Games, and now with the recently issued Law 31/2020. The new Italian regulation is fully in line with legislation adopted by other hosting countries to regulate not only the protection of Olympic symbols and investments of official sponsors, but also the organisational and economic aspects of the Games.
Law 31/2020 provides at Art. 10(1) for the prohibition of all parasitic, fraudulent, deceptive or misleading advertising and marketing activities carried out in relation to the organisation of sporting events or exhibitions having national or international resonance, which are not authorised by the organisers and are aimed at obtaining an economic or competitive advantage.
For the first time multiple types of conducts which could amount to parasitic advertising and marketing activities (ambush marketing) are then specifically defined at Art. 10(2):
- the creation of an – even indirect – link between a trademark or other distinctive sign and one of the events referred to above, likely to mislead the public as to the identity of the official sponsors;
- the false representation or declaration in its own advertising that an entity is an official sponsor of an event referred to above;
- the promotion of one’s own trademark or other distinctive sign through any activity, not authorised by the organiser, which is likely to draw the attention of the public, carried out in the context of one of the events referred to above, and likely to generate in the public the mistaken impression that the advertiser is a sponsor of the sporting event or exhibition itself;
- the sale and advertising of products or services unlawfully branded, even only in part, with the logo of a sporting event or exhibition referred to above, or with others distinctive signs likely to mislead the public about the logo itself, and to create the mistaken perception of any connection with the event or its organiser or entities authorised by the latter.
Art. 10(3) specifically excludes from the scope of ambush marketing all activities carried out within the performance of sponsorship contracts concluded with individual athletes, teams, artists or authorised participants to an event referred to in Art. 10(1).
The above prohibitions take effect as of the date of registration of the logos, brands and official trademarks of the events referred to in Art. 10(1) and remain in force until 180 days after the end of such events.
Fines for violations of the above provisions can range from Euro 100,000 to Euro 2.5 million, and the enforcement of the new rules is to be carried out by the Italian Competition Authority (AGCM).
Leaving aside the question on whether strictly defining unlawful conduct might be the right approach to regulate the phenomena of ambush marketing, it is worth noting that the formulation of Art. 10(2)(c) requires two conditions to be satisfied by the ambush marketing activities falling under its scope. It requires that the conduct be both:
- likely to draw public attention; and
- likely to generate in the public the erroneous impression that the author is sponsor of the event.
This significantly lowers the threshold of protection for organisers. In fact, it potentially enables ambushers to carry out ambush activities lawful merely by using disclaimers specifying they are not the official sponsors of the event at stake.
Critics of the new law also highlight the risk represented by Article 10(3). By establishing that ‘the conducts carried out within the performance of sponsoring contracts with individual athletes, teams, artists or authorised participants to an event referred to in Art. 10(1) do not amount to parasitic activities’ the risk is that of weakening the scope of Article 10 (1) by offering ambushers an easy path to claim that they are carrying out lawful activities by sponsoring e.g. individual athletes. This is precisely what happened in the above-recalled first episode of ambush marketing at the 1984 Los Angeles Olympic Games: a competitor of the official sponsor was indeed sponsoring individual athletes managing to appear in the eyes of the public as a sponsor of the event.
Among the positive aspects of the new regulation, it is worth noting that by protecting the interests of official sponsors, the goal sought by Law 31/2020 is that of boosting the attractiveness of investing in major sporting events, which contribute heavily to the survival of the major sport events such as the Olympic Games.
Furthermore, the extension of the protection period up to 180 days after the end of the events (up from the 90 days’ window set forth by the previous regulation) and the provision that the new rules will be enforced by the Italian Competition Authority through a hopefully fast administrative procedure are seen as improvements in terms of expected effectiveness over the previous attempts at regulating the issue.
However, it is worth bearing in mind that the peculiarities of the phenomenon at stake, in particular creativity and irony characterizing effective ambush marketing campaigns, render any legislation around the issue very delicate and complex. Not surprisingly, a successful and clever ambush marketing campaign often meets the favour and sympathy of the public, so that unless the issue is handled with care the official sponsor risks to be identified and labelled as the ‘aggressor’ even though it is merely attempting to protect the exclusivity rights.
To conclude, Law 31/2020 represents a worthy attempt to meet the instances of official event sponsors and organisers by prohibiting unfair commercial practices that jeopardize the attractiveness of the related investments.
Some critics point out that the Italian legislator was actually too timid and missed the chance to regulate ambush marketing in a comprehensive manner suitable to include all its possible forms of expression and for all kinds of events: on this point, we will have to wait for the first applications of the new rules to see how broadly they will be interpreted by courts. In the meantime, a careful and effective business communication still remains the best weapon to react to competitors’ attempts of ambush marketing.