9 April 2018Jurisdiction reportsValentina Gazzarri and Elisabetta Guolo

Italy jurisdiction report: Keeping advertisers in line

The specific rules are set forth in the Code of Advertising Self-Regulation and are enforced by the review board and the jury.

The code constitutes a legal framework that is independent of the Italian State rules and, therefore, it is binding only for those who adhere to it (eg, companies, radio, television, ISPs, etc). However, it is predictable that the code and decisions by the jury also produce effects for those working with the associates.

The code protects the interests of consumers and competitors.

In particular, companies are granted protection of their interest in differentiating their commercial proposals and, above all, in defending their IP and related values. In this regard, the following decision is of particular relevance.

In 2014, the jury held that advertising broadcasted by Fiat Group Automobiles (now FCA) infringed articles 13 and 14 of the code. The advertiser was deemed to have unduly exploited the reputation and the corporate image of a competitor through a marketing communication, which was similar to that transmitted by the competitor itself and had a defamatory effect.

In particular, the tagline “Panda Cross. Italia, Land of Panda” (a Fiat car model) clearly recalled Volkswagen’s advertisement “Audi. Italia, Land of Quattro”. Moreover, the Italian advertising included the scene of a Panda crossing rough terrains and woods, while a voiceover was ironically suggesting that Italy is not a country known for its forests but, on the contrary, Italians need a car that can be easily parked in the downtown (Decision no. 89/2014).

In this case, despite the Italian advertising sounding ironic and funny, the IAP decided to defend Volkswagen’s corporate image and brand reputation against undue exploitation and denigration.

These values, connected to IP, are also defended by article 15, concerning comparative advertising. Through this provision, every undue reference to the products of competitors and related trademarks is forbidden.

It can be seen from the above that the code is not an exemption to trademark and unfair competition laws.

Limitation on use

The code’s rules also represent a “limitation” on trademark use by rights owners, when the IAP deals with misleading advertising.

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