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Of Trade Mark Distinctive Function and the Role in Comparative Advertising Master’s Degree in Global Development and Entrepreneurship Final Thesis The “twilight” of trade mark distinctive function and the role in comparative advertising Supervisor Ch. Prof. Alessandra Zanardo Graduand Roberta Attanasi Matricolation number 851279 Academic Year 2018 / 2019 Index Introduction ...................................................................................................... 1 CHAPTER Ⅰ: THE EVOLUTION OF TRADE MARK FUNCTIONS 1.1 The context: basics of intellectual property (IP) ................................................. 5 1.2 Trade mark: notions, role as a distinctive sign ................................................... 8 1.2.1 Typologies of trade mark ................................................................................... 10 1.2.2 Unregistered trademark ...................................................................................... 15 1.3 Trade mark: the development of functions ....................................................... 16 1.4 From the old system to the reform of 1992 ...................................................... 20 1.5 The changes after 1992 and the “crisis” of traditional origin function .................. 26 1.5.1 Further features of protection: the development of secondary meaning and vulgarization ............................................................................................................... 37 1.6 Qualitative guarantee function ....................................................................... 47 1.7 Advertising function .................................................................................... 51 CHAPTER Ⅱ: THE ROLE OF TRADE MARK WITH REPUTATION 2.1 Different views and definitions ...................................................................... 57 2.2 The protection of “famous” trade mark before the reform of 1992 ....................... 62 2.3 The innovation after the reform of 1992 and the notions of trade mark with reputation ........................................................................................................ 70 2.4 The sentence of General Motors .................................................................... 77 2.5 The notion of prejudice and unfair advantage ................................................... 80 2.6 The concept of “connection” ......................................................................... 87 2.7 The due cause ............................................................................................. 92 CHAPTER Ⅲ: COMPARATIVE ADVERTISING 3.1 General traits of unfair competition ................................................................ 95 3.1.1 The proceedings: confusion, denigration, appropriation of merits, non- compliance with principles of professional fairness ................................................. 101 3.2 The use of comparative advertising .............................................................. 109 3.2.1 Comparative advertising requirements ............................................................ 114 3.3 L’Oréal practical case: regulatory context, preliminary questions focus on reputed trade mark in comparative advertising ................................................................ 121 3.3.1 Prominent rules ................................................................................................ 124 3.3.2 Analysis of the questions ................................................................................. 128 Conclusion .................................................................................................... 135 Bibliography .................................................................................................. 137 Case-law ....................................................................................................... 141 Websites ....................................................................................................... 145 Introduction The main topic developed by this thesis regards the role, the functions and the characteristics of the trade mark. The analysis deals with the evolution of trade mark at the earlier stage to the most important innovations introduced after the reform by d.lgs. n. 480/1992. Such reform causes many changes in the discipline. Above all, it is possible to mention the complete weakness of the distinctive function of trade mark that leads to various consequences; in particular, the consideration of new functions exercised by the trade mark such as the suggestive one, enabling to attract the consumer. The reform affects also a specific category of trade marks, those with reputation. In this context the opportunity to concede a wider protection grows over time so that the more a trade mark benefits from the notoriety the more the protection is enlarged. Then the topic shifts to use of trade mark in comparative advertising with all the requirements needed in order to make use of it in a legal way. The L’Oréal case analyzed at the end of the thesis aims to give a practical view on all the arguments treated: the use of trade mark and its specific regulation, the enlarged protection given to a trade mark with reputation, the use in the comparative advertising with the licit conditions required. The core of analysis in chapter I is the role of trade mark function as a distinctive sign. Indeed, an entrepreneur’s aim is to make his products and services stand out among the public in order to distinguish his goods from those of other competitors. Before starting the proper analysis of the trade mark distinctive function, it is important to mention the trade mark laws and regulations and to stress the different typologies of trade mark to various parameters including, among others, the differentiation between the general or the special trade mark, individual or collective, weak or strong and between registered or unregistered. The reform introduced in 1992 represents a real turning point on many aspects concerning this topic. For this reason, there is a distinction about the functions and characteristics before and after the reform, with a special attention to the evolution of the distinctive function and to the different views belonging to various authors. At the beginning the distinctive function was considered the only one juridically protected and this was confirmed by the belief “one trade mark, one enterprise”: in this way a 1 distinctive sign arose, was protected, circulated and expired according to the decisions of the single enterprise. Instead, after 1992 the discipline became less tighten, therefore the trade mark experienced a process of “dematerialization” in which it could be protected on its own and not only in relation to an enterprise; thus, it detached from the typical distinctive function and led to a different concept of trade mark, causing the crisis of the traditional distinctive function. Then, the topic moves to other features of protection highlighting the concept of secondary meaning and vulgarization, a way to rehabilitate the trade mark and a way to declare the forfeiture of it respectively. Finally, the chapter ends with an explanation of some of the functions introduced after 1992 such as the qualitative guarantee function and the advertising function. The second chapter is exclusively focused on the topic of trade mark with reputation. It examines the long path that these trade marks had to follow up to an explicit recognition as a legally relevant category. It treats some of the most authoritative considerations of the Italian scholarship and the relevant reflections of the case-law in order to highlight the stages that resulted from doctrinal awareness about the existence of the so-called renowned trade mark up to their proper definition and legal protection through the expression “trade mark with reputation”. Also here, the break is identified with the reform of the 1992, indeed the above mentioned path concerns the long way from the protection of the “famous” trade mark before the reform to the innovation brought after the reform. Actually, the definition of trade mark with reputation was found only in 1999 with the sentence of General Motors according to which an enlarged protection should be given when the sign is known by the significant part of the public focused on a substantial part of the territory. Subsequently, the attention shifts to the requirements needed in order to benefit from an enlarged extra-commodity protection, such as the prejudice and the unfair advantage. Finally, this chapter ends with the explanation of the concept of “connection”, according to which the consumer can establish a link or a mental relation between the third parties trade mark and the earlier reputed one; and the concept of due cause constituting the last element for the determination of trade mark with reputation. 2 The third and last chapter concerns the role of trade mark in comparative advertising. Actually, at the beginning it gives some explanations on general traits of unfair competition and the rules regulating this topic. At the same time, it analyses the art. 2598 c.c. as it disciplines the acts of unfair competition including particularly the confusion, denigration, appropriation of merits and the non-compliance with the principles of professional fairness. Afterwards, the focus moves to the use of comparative advertising and especially to the conditions that allow a licit comparative advertising, such as, among them: not to mislead, or take unfair advantage of the reputation of a trade mark, or
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