On January 30, opening date of the Milano-Cortina 2026 Winter Olympic Village, the so-called “Games Period” began. Throughout such term (which will end on February 24, two days after the Closing Ceremony), the Key Principles of the International Olympic Committee (IOC) are applicable to govern the use of participants’ images in advertising[1].
Just on that date, the Italian Competition Authority (AGCM) issued a press release whereby, upon a complaint filed by the Special Antitrust Unit of the Italian Financial Police (Guardia di Finanza), it had launched an investigation against a company for ambush marketing in relation to the Milano-Cortina 2026 Olympic and Paralympic Winter Games[2]. That company – who is not among the official sponsors – seems to have published online advertisements, including on major social networks, frequently showing – also in combination with its own distinctive signs – the Olympic symbol (the five coloured rings) and/or the hashtags #MilanoCortina and #MilanoCortina2026. As part of this conduct, the company also engaged influencers and advertised a line of clothing named Cortina a colori (namely Cortina in colour).
The AGCM investigation, opened in conjunction with interim measure proceedings for the provisional removal of the advertisements at stake, is grounded on the apparently unlawful direct association between the company’s brand and the Games, in breach of Article 10 of Decree-Law no. 16/2020 (Decree-Law)[3].
Let us take a step backwards to recall the ad hoc national legislation on ambush marketing, which was issued in consideration of the urgent need to strengthen the regulatory framework to counter free riding and protect well-known marks in the field of sports, as well as the specific commitments made to the IOC for Milano Cortina 2026.
Article 10 expressly prohibits free-riding activities, described as “parasitic, fraudulent, deceptive or misleading advertising and marketing activities, carried out in relation to the organization of sporting events or trade fairs of national or international importance, that are not authorized by the organizers and are intended to obtain an economic or competitive advantage” (para.1). This definition illustrates the concept of ambush marketing. A specific list of banned free-riding activities is then supplied (para.2):
- the creation of an even indirect link between a trademark or other distinctive sign and the event, likely to mislead the public as to the identity of the official sponsors;
- the false representation or declaration in one’s advertising of being an official sponsor of the event;
- the promotion of one’s trademark or other distinctive sign through any action, not authorized by the organizer, that is likely to attract the attention of the public, carried out during the event and likely to give the public the false impression that the person performing the action is a sponsor;
- the sale and advertising of products or services unlawfully branded, even only in part, with the logo of the event or with other distinctive signs likely to mislead the public about the logo itself and create the erroneous perception of a connection with the event, its organizer or sponsors.
Arguably, the conduct that is being investigated by AGCM would fall under letter/s a) and/or d) in particular.
Moreover, the conduct would be covered by the timeframe of application of the prohibitions under Article 10, which runs from the date of registration of the official logos or trademarks of the event until the 180th day following the official end date of the latter (Art.11). Hence, the investigated company risks an administrative fine ranging between Euro 100,000 and Euro 2.5 million (Art.12).
The application of the Decree-Law to this case would not be a première. By decision no. 30099 of 29 March 2022[4], the AGCM found that a well-known company active in the field of e-commerce had put in place a free-riding advertising activity surrounding the international soccer event UEFA Euro 2020. More particularly, the Financial Police had reported the presence, in a square in Rome where UEFA had set up the official Football Village, of a large-scale billboard featuring the claim “Who will be the winner?”, the name of the company, images of the 24 flags of the countries participating in the tournament and a white football t-shirt bearing the company’s logo.
The fine was inflicted in the minimum amount set out by the Decree-Law, in consideration, among others, of the limited geographical diffusion of the message (one billboard affixed in a single square) and the circumstance that it was the first enforcement of the new provisions after their entry into force. Neither of these circumstances could be relied on in the pending case; in particular, one may observe that running ads on the Internet entails an indefinite, potentially very large, territorial reach.
It is moreover noted that, as likewise specified in the Decree-Law (Art.13), the new rules do not preclude the enforcement of other legal provisions applying to the same free-riding conducts. As IP practitioners know, ambush marketing can be addressed within the framework of several pre-existing sets of provisions, especially the following.
- Trademark law, with respect to the distinctive signs of the event (under the Industrial Property Code for national trademarks; under Regulation (EU) 2017/1001 for EU trademarks). This remedy may prove of limited effectiveness, considering the weak distinctive character of the trademarks concerned (inasmuch as they identify/describe the hosting town or the type of sporting event concerned), and furthermore considering that the ambusher does not necessarily reproduce or imitate the organizer’s logo/name.
- Unfair competition, under art. 2598 of the Italian Civil Code, chiefly for misappropriation of merits and/or non-compliance with principles of professional fairness, provided that the ambusher qualifies as a “competitor”.
- Fairness in advertising, in particular under the Code of the Advertising Self-Regulation Institute (IAP Code), which is binding on those having accepted it directly or indirectly; and/or under Legislative Decree no. 145 of 2 August 2007 (on misleading advertising), as for relations between entrepreneurs/professionals; and/or under the provisions of the Italian Consumer Code on unfair commercial practices to the detriment of consumers.
In real-life cases – unless in presence of “hardcore” ambush marketing, characterized by a direct association with the event through an explicit use of its official signs – drawing a clear line between legitimate and unlawful marketing initiatives may not be obvious. The borderline becomes blurred when it comes to marketing strategies where the connection established between the non-sponsor brand and the event is more indirect. This happens, for instance, in the case of so-called coat-tail ambushing, which leverages the sponsorship of a prominent participant in the event (individual athlete or whole team, coach, trainer or official), in order for the brand to gain visibility bypassing the payment of the event sponsorship fees.
According to the Decree-Law, conduct carried out performing sponsorship agreements with individual athletes, teams, artists or participants authorized to the event does not constitute free-riding advertising (Art.10, para.3). However, the engagement of participants in commercial activities around the event, especially the use of their personal image in advertising by non-sponsors/non-partners of the event, remains a delicate issue.
As for the upcoming 2026 Winter Olympics, the abovementioned IOC Key Principles provide that “All Participants are permitted to promote their sponsors, and all sponsors are permitted to use Participant Images (in each case including Olympic Partners and Non-Olympic Partners), during the Games Period …”, but “… in accordance with the following Principles”[5], the implementation of which is a shared competence between the National Olympic Committee (for Italy, the CONI) and the Organizing Committee (for the upcoming Winter Olympics, Fondazione Milano Cortina).
Looking at the Principles, one reads that during the Game Period Non-Olympic Partners are allowed to use participants’ images for advertising subject to specific conditions. In addition to (i) obtaining the necessary consents from the participants concerned and (ii) respecting certain policies on activities that are incompatible with the Olympic values (for example, sponsorships connected with tobacco or prohibited drugs are banned), the advertising needs to (iii) avoid the use of any “Olympic Properties” and (iv) constitute “Generic Advertising”[6].
The list of Olympic Properties is extensive and detailed, including in particular: the Olympic symbol; the Olympic-related registered trademarks; the emblem, mascots, pictograms and graphics of the Games; the name of the host city along with the year of the Games (i.e. Milano Cortina 2026); the very words Olympic, Olympics, Olympic Games, etc.; names and emblems of Olympic teams (such as Italia team); the Olympic motto; films, musical/artistic works and designs created by the organizers; as well as “any other symbols, designs, works, words or expressions that are translations of, or which could be confused with, those listed above”.
In order for a marketing campaign to qualify as Generic Advertising, three cumulative requirements need to be met: that (i) the only connection between the Olympic Movement and the relevant marketing activity is the use of the image of a participant in advertising; (ii) the advertising has been on the market for at least 90 days prior to the Games Period, and (iii) the advertising has been run consistently and not materially escalated during the Games Period. Criteria (ii) and (iii) apply with a degree of flexibility, with exemptions to be considered by IOC on a case-by-case basis. In any event, within a specific deadline, Non-Olympic Partners are expected to have notified the IOC (or the relevant National Olympic Committee, in case of single-territory campaigns) of their Generic Advertising, so that the organizers are made aware of the planned activity, can verify its compliance and supply their feedback (for social media advertising, it is sufficient to describe the planned nature and content thereof, without the need to provide notice of each individual post).
Interestingly, still based on the IOC Key Principles, congratulatory advertising (either supporting an athlete/team or praising them for achievements at the Games), is not regarded as amounting to Generic Advertising, because of its “intrinsic connection with Milano Cortina 2026”. Non-Olympic Partners may undertake congratulatory advertising before and after the Games Period, but without using any Olympic Properties; brands of sporting goods participating in a specific project involving the World Federation of the Sporting Goods Industry (WFSGI Project) may do it (in the manner set out within the WFSGI Project itself) at any time, including during the Games Period.
On the whole, this set of limited restrictions is aimed at maintaining the distinctiveness of the official Olympic marketing programmes and supporting the funding of global athlete participation (the IOC runs an international marketing programme based on the principle of solidarity, to ensure that all teams are adequately funded to be able to join the Olympics)[7].
To facilitate the implementation of the Key Principles, the IOC issued an Illustrative Guidance dedicated to Non-Olympic Partners[8], containing a series of practical examples distinguishing between allowed and non-allowed initiatives, with images and brief explanations. The Guidance is relevant for advertising activities that cover more than one country, while those targeting only one territory are subject to the rules of that country’s National Olympic Committee and/or the relevant Organizing Committee.
The CONI has actually published its own Guidelines[9]. Besides, Fondazione Milano Cortina 2026 has issued, among other information on the protection of Intellectual Property in relation to the Games[10], specific Guidelines addressed to shopkeepers[11]. Basically, business owners can create a welcoming atmosphere (for example, using country flags, generic references to sports and neutral messages such as “Let’s celebrate sport!”), but without suggesting an official association with the Games. Rather, the Guidelines require a non-sponsor business to refrain from creating installations, shop windows, corners or other structures reproducing the trademarks of Milano Cortina 2026 or showing an excessive similarity to the graphics of the Games, in a way that suggests an official affiliation or association. For retailers whose stores are located within 500 meters of the competition venues and whose media exposure could be significant, the principle of continuity (so-called business-as-usual rule) applies.
To sum up, the upcoming 2026 Winter Games ought to also supply a sort of fresh legal playground. Within the multi-layer legal framework outlined above it could be instructive to see, on the one hand, whether organizers and sponsors will resort to the remedies available to them, and to which ones, to root out unlawful ambush marketing; and, on the other hand, whether marketing offices and agencies of non-sponsor businesses will succeed in being creative and ride the wave of enthusiasm surrounding the Olympics without slipping into infringement and/or free-riding practices, first and foremost in the digital landscape.