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

15 novembre 2008


Stefano Sandri

According to Court of First Istance , T‑340/06, 2 July 2008, the original signature (see herebelow) of the famous Italian lutist Antonio Stradivari, in arte Stradivarius, of the 17th century, cannot be read by the relevant consumers, or, better to say, cannot be understood and reported to the artist, letting aside the number 1715. To the contrary, the name of Stradivarius should be clearly legible in the figurative mark of the opponent:

Therefore, goes on the court, there is not confusingly similarity between the marks in comparison, for ,conceptually speaking, they don’t convey the same message which should be the main distinctive element.
It’s surprising , at least for me, that the court took 64 paragraphs to came to the obvious answer that the two signs generate globally a very different impression. In this respect the judgement is incorrect to the extent it analyzes the community trademark applied for independently from the contest, as to say from the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but must place his trust in the imperfect picture of them that he has kept in his mind.
Since it is accepted that in Europe the average consumer is sufficiently aware of Stradivarius,but he is not familiar with his signature, you may assume that he cannot establish a link, on the conceptual basis, between the products and the lutist if you examine the applicant trademark per sè, as an absolute ground for refusal, making abstraction from the association or recall the consumer will establish with the other sign. Within the contest of the assessment of the likelihood of confusion, taking in account of the relevant factors, including the identity of the products, the conclusion based on the semantic parameter might have been different, although the visual difference would have prevail.

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