Intellectual Property

The Supreme Court's pronouncements on patronymic trade marks

The first section of the Supreme Court of Cassation recently ruled on the protection of the patronymic trade mark, i.e. a trade mark consisting simply of a first name and surname (even just the surname, for greater distinctiveness).
distinctive character). The case in question deals with the lengthy legal battle between members of the Hausbrandt family, who use their family history 'to accredit themselves as those who continue the business', and the company that actually has the right to the economic use of the patronymic trademark of the famous coffee roasting company. In order to better frame the issue, here are some factual elements also contained in the Supreme Court's order.
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Parody as an expression of the right to criticism: the Supreme Court's ruling

The Court of Cassation recently ruled on the subject of copyright with Order No. 38165 of 30 December 2022 on the lawfulness of a parody work used for advertising purposes. This is a rather troubled procedure, so much so that a final ruling on the issue has not yet been pronounced. It is necessary to go back in time, to 2007, when the US company Zorro Productions Inc. sued CO.GE. DI. International - Compagnia Generale Distribuzione S.p.a. for having commissioned a campaign in which the well-known swordsman Zorro advertised 'Brio Blu' mineral water, infringing the intellectual property rights belonging to the plaintiff company. The ruling, which, in fact, declared the defendant company's infringement of the aforementioned rights, was then appealed by CO.GE.DI., and, on appeal, the judgment was overturned on grounds based on the fact that the character of Zorro had now fallen
in the public domain of the Zorro character. Having appealed to the Supreme Court of Cassation against the sentence of appeal, the Supreme Court annulled the contested sentence, excluding, however, the fall into the public domain of the exploitation rights claimed by Zorro Productions: in fact, the Court pointed out that, under the 1952 Geneva Convention (Universal Copyright Convention), the works of United States citizens published in Italy enjoy the same protection provided for by Article 25 of Law no. 633 of 1941, that is, until the 70th calendar year from the death of the author.
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AGCOM towards the protection of the rights of stateless artists

The Communications Guarantee Authority (AGCOM) recently launched a 60-day public consultation concerning the draft Regulation implementing Articles 18-bis, 46-bis, 80, 84, 110-ter, 110-quater, 110-quinquies, 110-sexies, 180-ter of Law No 633 of 22 April 1941, as amended by Legislative Decree No 177 of 8 November 2021 (Resolution No 44 /23/CONS), providing in detail that the collecting societies, which exercise the copyrights on behalf of a plurality of owners vis-à-vis the users of intellectual works, will also be entitled to the earnings of the so-called 'stateless' artists. First of all, it is necessary to emphasise the distinction between the concept of stateless person in the meaning given by the United Nations and, in general, at international level, i.e. the individual without any citizenship, and the stateless person in copyright law, i.e. the artist not registered with any collecting society, who is in charge of collecting royalties to pass them on to the right-holders.
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Does the sale of a luxury product at an outlet damage the brand's reputation? The Supreme Court's recent ruling (Order No. 7378 of 16.02.2023)

The Supreme Court of Cassation recently ruled, in Order No. 7378 of 16.02.2023, on the appeal of a well-known luxury brand claiming damages from a company that sold its jewellery in a provincial Outlet, deemed to be outside the authorised distribution network. Specifically, the large jewellery maison ("Maison"), appealed against the judgment of the Court of Appeal of Milan, which found that the existence of selective distribution for the marketing of products bearing the well-known luxury brand was not proven, holding, instead, that such activity carried out by the other company ("Company"), outside the authorised distribution network, had not caused any damage to the reputation of the aforesaid brand. The Maison's appeal to the Court of Cassation was mainly based on two complaints infringement and/or misapplication of EU Regulation 330/2010, insofar as it failed to examine a decisive fact that was the subject of discussion between the parties, namely that the products of the well-known brand were luxury goods, which were in themselves capable of legitimising the adoption of a selective distribution system; infringement and/or misapplication of EU Regulation 330/2010, insofar as it failed to examine the decisive fact, namely the absence of damage to the reputation of the brand in the sale of the products carried out by the Company.
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Court of Cassation (ord.) Civil Section I, 16 January 2023 no. 1107: the digital flower of the set design of San Remo 2016 considered a work protected by copyright

The Court of Cassation has affirmed that a digital work representing a flower, used for the set design of the evenings of the 2016 San Remo Festival, is a creative work and therefore protectable under copyright law. The decision originated from a dispute between an architect who designed a "digital flower" and RAI, which used it without the author's consent for the Sanremo Festival. Both at first instance and on appeal, it was decided that the flower in question was creative, even though it was the result of an elaboration of lines and colours created using software.
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INFORMATION TECHNOLOGY

ChatGPT: new artificial intelligence challenges the legal sector

The future seems to have become present with OpenAI's new ChatGPT: a chatbot, that is, an artificial intelligence system created in order to simulate a conversation with a human being. The programme, in fact, thanks to various algorithms has a good understanding of natural language, being able to formulate centred, plausible and articulate answers to the questions asked: ChatGPT identifies the questions it was unable to answer,
and expands its knowledge precisely to compensate for this. The chatbot therefore has the ability to improve the quality of its conversations, as well as its knowledge base to better satisfy the user with whom it is interacting. Its success has been decreed by the 100 million active users of the app in just two months. In short, it is an evolved expert system, as it is based on the performance of tasks and questions that require specific skills, and that can only be carried out by experts. When the chatbot does not know, it formulates answers by guessing on the basis of statistics. Yet, it has been pointed out by OpenAI, the project owner, that ChatGPT is still a fallible system: it makes mistakes. What distinguishes it from other artificial intelligence systems is that it learns from them, avoiding repeating them.
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The 12th Nice Classification: new protection for virtual goods and NFTs

As of 1 January 2023, the 12th Nice Classification, the new updated system adopted by the European Union, and in particular by the EUIPO (European Union Intellectual Property Office), to provide protection for goods and services through EU trade mark applications, came into force. The Classification consists of no less than 45 classes, with goods falling into classes 1 to 34 and services 35 to 45. Each class has a heading containing general information about the various types of goods or services, in order to frame and distinguish them from one another. As of this year, there is a novelty that deserves special attention: the increase in the virtual world of production and trade of digital products and NFT by the most successful brands, and not only that, has created a need for the owners of the respective copyrights and intellectual property rights to claim protection for their brands, which are exposed to the risks of the virtual world and the so-called Web 3.0.
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AUDIOVISUAL

New legislation on works of the visual arts in the public domain

EU Directive 2019/790
The EU Directive on Copyright in the Digital Single Market, or EU Directive 2019/790 ('Directive' or 'CDSM Directive'), harmonises the EU regulatory framework on copyright in the digital environment, balancing the different interests at stake, including:

• the right of authors and performers to obtain adequate and proportionate remuneration for the exploitation of the results of their work;
• the right of users to freedom of thought, expression and access to content;
• the business freedom of web platforms and other digital economic operators not to control the
• content made available online;
• the promotion of culture, dissemination of knowledge and ideas.

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Media Freedom Act: the new proposal for a regulation of the European Parliament and of the Council
establishing a common framework for media services in the internal market

On 16 September 2022, the European Commission presented a proposal for a regulation, also known as the Media Freedom Act, prepared by the Parliament and the Council, establishing a common framework for media services within the internal market and amending Directive 2010/13/EU. The media sector is one of the 14 ecosystems of cultural and creative industries that are crucial for an inclusive and sustainable recovery as well as for the dual green and digital transition of the EU economy.
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The new European patent system - Entry into force

In 2012, in order to simplify and improve the European patent system, two EU Regulations (No. 1257/2012 and No. 1260/2012, the "Regulations") were enacted, which established the European Patent with Unitary Effect ("Unitary Patent"), as well as the Agreement on the Unified Patent Court ("Agreement"), which introduced the Unified Patent Court ("Unified Court" and/or "UPT") with exclusive jurisdiction over Unitary Patents. The transitional rules provided for in the Agreement, however, give European patent holders the option to remove each patent from the jurisdiction of the Unified Patent Court before the new jurisdictional system becomes operational, during the so-called 'sunrise period'. In this regard, it should be noted that a note signed by the President of the TUB Court of Appeal and the President of the TUB Administrative Committee (https://uibm.mise.gov.it/index.php/it/brevetti/brevetto-europeocon-effetto-unitario) announced that the original schedule, which envisaged the entry into force of the Agreement on 1 April 2023, has been modified in order to allow an additional two months for the necessary fulfilments. Consequently, the sunrise period will start on 1 March 2023 (and no longer on 1 January) and the start of the unitary patent system will take place on 1 June 2023 (and no longer on 1 April).

The first Italian case law rulings on the subject of NFT trace an important interpretative path

The Seventeenth Civil Business Section of the Court of Rome was the protagonist of one of the first European rulings issued on the subject of NFT and metaverse. Although there is still no unitary definition of NFT (non-fungible token), the recent precautionary order of 20 July 2022 issued by the aforementioned judicial body stands as a guarantor of a discipline dedicated to this specific type of virtual assets. In detail, the well-known football club Juventus Football Club charged the defendant company with the conduct of trademark infringement and unfair competition, consisting in the unauthorised use of the word marks "Juventus" and "Juve", as well as of the figurative mark corresponding to the black and white vertical striped jersey with two stars on the chest, for the production, marketing and online promotion of NFT digital playing cards, depicting a well-known former player with the jersey and the team name. These denominative and figurative marks are distinctive and characterising elements of the merchandising activity carried out by Juventus Football Club S.p.A., which operates in various sectors through physical shops located throughout Italy and websites accessible worldwide.
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Streaming platforms, privacy by design and the design of processing - application guidelines in Europe

The principle of Privacy by Design was made explicit by the European legislator in Article 25(1) of Regulation (EU) 2016/679, General Data Protection Regulation, ('GDPR'). This principle lays down very precise obligations for all those who decide on the purposes and methods of the processing of personal data, i.e. data controllers, whatever the market in which they operate. Exemplary of the scope of the principle of Privacy by Design is the sanctioning measure adopted on 3 November 2022 by the Spanish Supervisory Authority - Agencia Espanola de Proteccion de Datos ('AEPD') - against the company BURWEBS S.L., which operates the adult film streaming platform www.muyzorraz.com. In order to ensure the effective access of workers to wage protection, the Directive places the onus on the Member States to adopt the necessary measures to this end, which provide, in particular, for effective controls and inspections as well as measures contributing to developing the capacity of the authorities responsible for monitoring the application of minimum wages by employers. The central role of the social partners in determining and updating legal minimum wages is also affirmed, as well as their necessary participation in identifying measures to ensure workers' effective access to legal minimum wages. In conclusion, the directive does not seek to harmonise the level of minimum wages in the Union or to establish a uniform mechanism for determining them. It aims to ensure the adequacy of wages while leaving Member States free to set statutory minimum wages or to promote access to minimum wage protection provided by collective agreements, in line with national law and practice.
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Methods for dealing with cyber threats and the new D.O.R.A. Regulation

As is well known, the development of digital platforms used in both the productive/professional context has increased the risks to which users, understood as both individuals and companies, are exposed, and which have serious consequences in terms of damage to image and reputation, financial losses, and of course the violation of personal data and the illicit use of confidential information.

For this reason, states all over the world are developing newer and newer cybersecurity practices in order to counter the increased risks for those working in the digital world. Cybersecurity refers to the protection of systems connected to the Internet, such as hardware, software and data, from so-called cyber threats. It is mainly used by private individuals and companies to protect against unauthorised access to data centres by outsiders or the now notorious cyber criminals. The choice of the term 'security' is not accidental: computer security or cybersecurity protects data and information from malicious software, also known as malware, and, more generally, from cyber threats such as, for instance, hacker attacks and DDoS (Distributed Denial of Service) attacks, the latter having the purpose of rendering a website or online service unserviceable by overloading it with access requests and spam originating from various sources. This term therefore refers to data and information contained in a computer, network, or devices in general.
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