Trademark protection and counterfeiting: the relevance of public faith


With sentence no. 31836/2020, the Italian Court of Cassation again ruled on the relationship between the protection of the trademark and the crimes of "counterfeiting, alteration or use of trademarks or distinctive signs or patents, models and designs" and "introduction into the State and trade of products with false signs ", respectively provided for and punished by art. 473 and 474 of the Italian criminal code.


The case in question concerned a seller of spare parts for automobiles bearing the brands of various car manufacturers, whose display was accompanied by a sign that specified the non-authenticity of these parts, distinguished by those brands for the sole purpose of indicating compatibility and intended use.


The appeal presented by the seller, accused pursuant to art. 474, paragraph 2, c.p. ("Apart from cases of concurrence in counterfeiting, alteration, introduction into the territory of the State, anyone who holds for sale, offers for sale or otherwise puts into circulation, in order to make a profit, the products referred to in the first paragraph of this article, is punished with imprisonment of up to two years and a fine of up to € 20,000 "), was based on the impossibility that the customer could be misled about the authenticity of the pieces sold, thanks to the sign posted.


The Italian Supreme Court, however, clarified that the juridical good protected by articles 473 and 474 of the criminal code it does not consist in reliance on the individual, but in public faith in an objective sense, thus establishing that "for the purposes of integrating the crimes it is not necessary to create a situation such as to mislead the customer about the authenticity of the product; on the contrary, in the presence of an infringement, the offenses can be configured even if the buyer has been made aware by the seller of the non-authenticity of the trademark ".

This interpretation is justified in light of the special protection granted to the registered trademark, such that the 'simple' infringement is, in itself, sufficient and decisive for the violation of the protected good.

Avv. Francesco Bianchi

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