The Italian Council of State rules on ambush marketing and freedom of expression: the Zalando case

With ruling no. 3118/2025, the Italian Council of State (CoS) upheld the Italian Competition Authority (ICA)’s decision that sanctioned Zalando for using ambush marketing during UEFA Euro 2020. We talked about it here in this post.

The sanction, amounting to 100,000 euros, had been imposed in relation to an advertising billboard installed by Zalando in Rome, near the event’s official Football Village. It depicted a white T-shirt with the Zalando logo, the slogan “Who will be the winner?” and the 24 flags of the nations participating in the tournament. According to the ICA, these elements could create an indirect link with the event and mislead the public, making them believe that Zalando was an official sponsor, in breach of art. 10 of Legislative Decree 16/2020.

Zalando appealed against the decision, first before the Lazio Regional Administrative Court (“TAR”), and then before the Council of State arguing, among other things, that the advertising message was not misleading and that sanctioning it would constitute an undue restriction of its freedom of expression. According to Zalando, in fact, the advertising campaign was aimed at supporting sexual minorities, and in any event the contested image, displayed from 1 to 8 June 2021, was to be replaced from 8 to 15 June by the following, stating “Who will be the winner? Love always win”:

The CoS, like the TAR before it, rejected the appeal, fully confirming the ICA’s decision.

In its reasoning, the CoS recalls first of all that, based on the case-law formed in the civil courts:

“- ambush marketing” consists in associating a brand or product with an event having great media resonance, without the authorisation of the event organiser;

- ambush marketing is considered misleading, since it misleads the average consumer about the existence of sponsorship or affiliation relationships or in any case connections with the owners of intellectual property rights, which do not exist, and constitutes a particular case of unfair competition contrary to professional fairness which is sanctioned under art. 2598(3) of the Civil Code;

- through ambush marketing, the unfair competitor falsely connects the image and the brand of a company to an event of particular media significance without being tied by sponsorship, license or similar relationships with the organisation of the event; in this way it takes advantage of the event without bearing any of the costs, with consequent undue attachment to the event and negative interference with the contractual relationships between organisers and authorised subjects;

- the damaged parties are the organiser of the event, the official licensee (or sponsor) and finally the public".

That said, the CoS appears to agree with Zalando in stating that “lawful ambush marketing” may exist, where the connection with the event is not capable of misleading the public about the identity of the official sponsors. In this specific case, however, the CoS confirms the existence of such deception: the combination of the elements – position of the billboard near the Football Village, slogan used, football shirt, flags of the nations participating in the event – constituted communicative “framing” capable of persuading the average customer to believe, erroneously, that Zalando was the official sponsor of UEFA Euro 2020.

In this context, the CoS notes, the ICA's decision not to evaluate the relevance of the second advertising image, which Zalando intended to display from 8 to 15 June, also appeared correct: on the one hand, it was, in fact, a future and uncertain event; on the other, "the people who would have seen the second billboard would not necessarily have been the same ones who had seen the first one so as to reconstruct the entirety of the advertising message, hence the subsequent conduct could not have excused the offence".

As for the alleged restriction of freedom of expression, the CoS highlights that the ICA had not censored the content of the campaign as such, but only the ways in which it had been carried out, that is, in such a way as to mislead the public about the existence of sponsorship relationships: "No problem would have arisen if the exact same message had been published elsewhere and had not generated a connection with Euro 2020”.

Finally, the CoS considers unfounded the ground of appeal with which Zalando argued that the sanction imposed would have been excessive because it would not have taken into account the absolute novelty of the case, introduced by Law no. 16/2020. In fact, the CoS notes, this sanction already corresponded to the minimum statutory sanction and the ICA had correctly complied with the legal parameters, including the fact that it was the first application of the violated legislation.