Stefano Sandri
The Court of Naples, IP Special section, ITALSOFTs.r.l. v. ACCA SOFTWARE, has lately made an advanced application of the unfair competition law in the telematic environment. The case deals with the insertion in an Internet site of a comparative slogan detrimental to the industrial interest of a more reputed competitor. The unfair competitor managed to take advantage of the behaviour of a navigator, looking for a business sign, as to divert him to another sign through a slogan.
The decision sanctioned as unlawful that action, disregarding the slogan content, to the extent that the insertion of the message in the web site was intentionally aimed to direct the navigator attention to products others than the ones the consumer was looking for by interrogating the search motor.
The decision pointed out that as a general rule the web site owner is crucially interested in the moment of the users’ first contact. It follows therefrom that even in this case – which departs from the meta-tag case – the prejudice to the trade
mark owner stays not only in the actual likelihood of confusion with the imitating sign but also in the likelihood of a manipulated telematic contact that the competitor can arrange through technical expedient.
In the case at hand the competitor maliciously used a reputed mark as a part of a slogan, in such a way, from a technical point of view, to allow search motor to keep the competitor’s website between the first postions of a search conducted by navigators to obtain information regarding the products (same typology) distinguished with the reputed mark.
The decision pointed out that as a general rule the web site owner is crucially interested in the moment of the users’ first contact. It follows therefrom that even in this case – which departs from the meta-tag case – the prejudice to the trade
mark owner stays not only in the actual likelihood of confusion with the imitating sign but also in the likelihood of a manipulated telematic contact that the competitor can arrange through technical expedient.In the case at hand the competitor maliciously used a reputed mark as a part of a slogan, in such a way, from a technical point of view, to allow search motor to keep the competitor’s website between the first postions of a search conducted by navigators to obtain information regarding the products (same typology) distinguished with the reputed mark.
In other words the Court of Naples seems to figuring out in the described situation a case of pre-sale confusion. The full text of the decision, together with a smart and exhaustive comment of Avv. Guido Maffei (www.bugnion.it/eng/societa/staff/maffei.htm) can be read here, 06/2007, in a few days.
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