Gucci and Burberry, slap to counterfeiting. The Court of Cassation extends the protection to iconic motifs
All that is envied comes then imitated. And so it happens in the luxury sector, where the counterfeiting of more or less famous fashion brands proliferates. Counterfeiting that, only apparently, brings benefits in terms of savings. Above all because it is the quality that pays the price. But the Court of Cassation has recently intervened on the issue to protect two major giants of clothing and beyond. As the site reports Pambianconewsin fact, the judges have extended the protection to iconic motifs Of Burberry And gucci, respectively the “check” of the British fashion house and the “green-red-green ribbon” of the house maison Kering.
In judgment 21640-23 it is stated that “the penal protection of famous brands must be extended to product sectors completely unrelated to the brand’s interest whenever there is a risk, according to the judgment of the average consumer, the confusing of the attribution of the reproductive product of the original and ‘strong’ trademark, design or model because it is widely ‘known’”.
To end up in the crosshairs of the two luxury brands was the case of seizure of several kilometers of tape intended for the favor sector, which reproduced signs imitating both motifs. The Judges of Legitimacy, in addition to recognizing the celebrity of the brands in question, reiterated that the criminal protection of a famous brand extends to every product category, as its imitation risks causing deception among consumers and therefore damaging the faith publish.
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At first instance, the trial ended with an acquittal since the Court of Massa (Massa-Carrara), after stating that the brands in question had to be considered “weak”, and therefore endowed with limited protection, he stated that the seized tapes reproduced sufficiently different plots. In the evaluation of the Massa judge, two defensive theses had an important weight, also re-proposed in the appeal judgment and in Cassationaccording to which, with regard to the “Burberry Check”, the company producing the ribbons allegedly boasted a lawful pre-use of the motif, intended exclusively for the favor sector. A decision that did not attach any importance to the fact that the English brand had also registered its trademark in the ‘black and white’ version, stating that only the sign in the characteristic ‘red, beige and black’ colors could enjoy a limited scope of protection as a ‘weak’ brand.
As for the “Green Red Green Ribbon” by Gucci the possibility of registering it as a trademark was questioned as a sign of ‘public interest’, since the motif coincides with the ribbon that supports the honor of the Cavalieri del Lavoro.
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On the other hand, the Court of Appeal of Genoa, which, first of all, recognized the reputation of the brands in question, thus granting protection to the Burberry motif in every color variant, by virtue of the “black and white” registration. As regards the alleged pre-use, the Genoese judges observed that the notoriety of the “Burberry Check” motif, at least in its characteristic colours, dates back to the 1920s, thus making any pre-use with respect to the first Italian recording of the same (dating back to 1986).
In conclusion, for the Supreme Court “what counts is the capacity of the design, shape or model” – recognized for both brands (the motifs, ed) historians of these brands – “to represent a ‘distinctive sign’, the counterfeiting of which endangers the good of the public trust”.
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