By judgment no. 5602 of 27/06/2025, the Council of State confirmed that the concession of the “Festival di Sanremo” trademark must necessarily be preceded by a public tender procedure.
Indeed, since it concerns an asset of the Municipality from whose exploitation derives a revenue in favor of the Municipality itself, the trademark of the Festival della Canzone Italiana cannot be directly entrusted to RAI but must first be subject to a public call.
The case
In 2023, JE s.r.l., a music publishing company, submitted to the Municipality of Sanremo an expression of interest in acquiring the ownership of the economic and commercial exploitation rights of the “Festival di Sanremo and the related trademark,” also calling for the initiation of a tender for the awarding of the agreement for the 74th edition of the Festival (for the year 2024).
By note dated November 23, 2023 (without responding to JE’s request), the Municipality declared JE’s expression of interest “inadmissible” “due to lack of the relevant subjective requirements and regardless of their actual consistency, but also due to the absence of concrete interest.”
Subsequently, JE challenged the act of awarding RAI the exclusive concession of the “Festival della Canzone Italiana” trademark, owned by the Municipality, and the management of the 74th and subsequent editions of the Festival, essentially contesting the failure to call for a tender.
In 2024, the Regional Administrative Court (TAR), in the presence of opposition from the Municipality of Sanremo, RAI, and Rai Pubblicità, declared the appeal inadmissible due to the non-existence, at the time of submission, of acts that could be challenged, while the existing agreement at the time pertained to the 72nd and 73rd editions of the Festival (years 2022 and 2023), which were already concluded, and on which the appellant had no interest.
However, in its ruling, the TAR qualified the award as an active contract for the exploitation of the Festival’s trademark. Since it is a trademark owned by the Municipality, the TAR stated that it was subject to the principles of public transparency and required consultation with various operators in the sector for its concession.
In the same decision, rejecting the defenses of the defendants, the TAR also specified that the longstanding concession to RAI, spanning over seventy years, did not justify the continuation of such a practice (considered unlawful), nor did it legitimize the circumvention of the obligations of public transparency.
The appeal to the Council of State
The losing parties appealed the first-instance ruling, challenging the TAR’s judgment on various grounds.
With particular reference to the trademark, RAI emphasized that it had created the format of the Festival program and that, due to the relationship between the Festival’s trademark and the program’s format, the two intangible assets should be considered inseparable.
In summary, as the holder of the rights to the television format of the program, RAI argued that the “Festival di Sanremo” trademark could not be associated with a program of a different format, given the inseparable bond now established between the two. From this, it concluded that the Municipality could not make the trademark available to third parties to label a musical event different from the Festival, under penalty of deceptive use of the trademark.
The Council of State’s ruling
Providing detailed reasoning, the Council of State rejected all the claims of the appellants, confirming the previous TAR judgment.
Regarding intellectual property rights, the Judges clarified that what constitutes the object of the municipal right is the musical event itself, namely the Festival, as a musical event owned by the Municipality.
Starting from this assumption, the entire defense of RAI and Rai Pubblicità regarding the existence of competing rights over the Festival did not appear acceptable:
“The Festival, as a clearly identified musical event, constitutes an event of which the Municipality of Sanremo is the owner (in the capacity of trademark holder); that a television program whose format was conceived by (and therefore may fall within the intellectual property of) other subjects has been associated with this event over time is a circumstance that lies on an entirely different level, which has nothing to do with the municipal (and therefore intangible) trademark ownership, which over time has also been associated on some occasions with (even partially) different formats.”
From this perspective, in the opinion of the Council of State, the trademark certainly has its own autonomous identity and distinct content independent of the TV program, and therefore one cannot claim any resulting deceptiveness.
Therefore, the Council of State concluded by stating that:
“In the current framework, the concession of the Festival-related trademark can certainly be classified as an active contract for the Municipality, from which a revenue in favor of the administration arises; as such, it is excluded from the application of the Public Contracts Code (Art. 13, paragraph 2, Legislative Decree no. 36 of 2023), but remains subject to its underlying principles, since the related ‘award […] shall take into account the principles referred to in Articles 1, 2, and 3’ (Art. 13, paragraph 5, Legislative Decree no. 36 of 2023).”
Ilaria Feriti