Trademarks, Brands, Patents, Designs, Made in Italy, Copyrights, Competition Law, Contracts and Enforcement

07 maggio 2008

Italy says no to Chinese replicants

Stefano Sandri

The international press, as well as this blog, reported a few months ago on the astonished imitation of SMART car of DAIMLER CHREYSLER on part of some Shuanghuan Chinese manufacturer. In Germany the Court of Frankfurt, under the pressure of an irritated Angela Merkel, denied access to the Chinese to the International scheduled cars exhibition.

In Italy the ‘clonant’ tried again to introduce the car, named Noble or Bubble, depending of some minor differences, and set up an importer and distribution net. Two importers offered a Noble in the territory of Turin and at the same time attacked the German ‘competitor’ challenging the validity of its Community trademark and International design registration covering the shape of the famous city car. Incredible!

The owner of the Smart therefore introduced with the Court of Turin an application for seizing the imported products and setting of additional ad interim measures.

The Court granted the seizure order without hesitation, inaudita altera parte, on 16 November last year and lately, after an expertise, confirmed the order on 14 March. Pursuant to the decision the importer are prevented to further import trade, advertised in any manner the contested products and the order has been published on the major newspapers and magazines at cost of the infringers.

We are reproducing here the two cars in question, whereby it is apparent that the model Noble is practically identical, whilst the reproduction of SMART in the model Bubble is not so apparent. The Court experts and the Court itself, however, made a difference between trade mark and design title, by meaning that the informer user in the design appreciation is more careful than the final consumer and thus may perceive a different impression making comparison between the two cars, especially due to the absence of the two colors combination.To the contrary this is not the case if you report to the general impression of the buyers.

As a legal consequence the model Bubble was not considered as infringing the design right of DAIMLER CHRYSLER, but as infringing the Community Trademark as well as applied to the model Noble. According to the judges, indeed, the final consumers might be confused as to he origin of the products so identified by their general shape.

For other posts about Smart/Noble click here and here and here

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