Made in e autodisciplina pubblicitaria

This chapter introduces a summary of opinions and relevant precedents concerning the misleading and unfair exploitation of geographical indications in commercial advertising. Whenever it comes to qualified geographical indication, which, under art. 22 of the Trips Agreement and art. 29 of the Italian Industrial Property Code, acts as a certification that the product comes from a designated area and meets certain criteria, all business entities from the designated area are entitled to take legal action under the Italian Industrial Property Code (art. 30 and art. 117 et seq.) and art. 2598 et seq. of the Italian Civil Code against a competitor that gives the impression that its product, or products, has a relevant origin, characteristic, quality or association that does not exist. Nevertheless, the European Court of Justice recently held that protected designations of origin and protected geographical indications used in regard to food and agricultural products must be registered in order to qualify for legal protection under Italian regulations concerning industrial property protection and unfair competition. This decision has been strongly criticised by academics. Notwithstanding this ruling, if a geographical indication is used to mislead the public by indicating the geographical origin of goods but does not act as a certification that the product meets certain standards, competitors, no matter where their legal residence may be, are always entitled to take legal action under the Italian regulation concerning unfair competition on this basis alone. This protection is not available to consumers and their associations, which, along with competitors, may take recourse before the Italian antitrust authority to have an advertisement or misleading use of geographical indications prohibited and sanctioned. Focus is given to the Italian Ad self-regulatory organization’s case law concerning advertisements that use toponyms as fantasy-name products or brand names (e.g. Montenegro liqueur) or as brand names suggesting origin (e.g. Tahiti foam bath) or for the identification of a particular type of regional product (e.g. advertisements for Pasta di Napoli and Pilsner beer) or a protected designation of the area of origin that is not factual (e.g. advertising for Asiago cheese). Italian Ad SRO case-law contains instances of advertising and/or promotion using ‘made in’ claims (for instance in relation to the marketing of Scottish shoes and Swiss cosmetics that were not made in those countries) or suggesting that the product was “made in Italy” by using the Italian national anthem for the advertisement’s musical score. By way of conclusion, the author highlights that advertising self-regulation concerns the commercial exploitation of geographical indications in the context of the likely understanding and perceptions of the average consumer, and that the Ad SRO shows respects and promotes the European basic rule of freedom of movement of goods within the European market, which is enshrined in the European Union Treaty.