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

22 aprile 2009

The whole and the parts arrive to Turin’s court

Stefano Sandri

Maybe you recall the blog of few months ago, whereby I quoted the statement "the whole can be greater than the sum of its parts." as a leading concept driving the I.P. issues. This concept represents the fundamental principle of the Gesthaltung theory on the basis of which the modern psychology of the perception is founded. In my latest work on the perception of the trade mark (Percepire il marchio: dalla identità del segno alla confondibilità ‘, 2007) I deserved an entire chapter of the book on the application of the principle to the construction of the identity of the mark and its legal consequences in this area.

It comes to my attention now the full text of the decision (Rivista Il Diritto Industriale, 01/2009) rendered by the court of Turin at the occasion of the well known controversy between FIAT and a Chinese producer of a car, marked Peri, very similar in his shape to the FIAT ‘ “Nuova Panda”. The design of “Nuova Panda” was registered at OHIM ‘Office and according to FIAT the shape of the Chinese “Peri” was as such as to generate in the informed utilizer the same general impression .

The claims of FIAT have been upheld and the main ground of the decision recites: ” As far as to the meaning of the “general impression” it is to be noted, as it has been underlined (by me!), that it results by the global interaction between the parts and the whole. This outcome derives from the representation of an extra quid that identifies, trough a synthetic and global approach, the shape of the design, and not trough the simple sum of its parts.

it's the first case, at my knowledge, that my ideas on trade marks overcome the reluctance of the establishment and ground a judicial decision.

I hope that the case will be not remain the only one.

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