Florence court's decision on use of David's image now available

Michelangelo's David
Last weekend I reported on this blog the news of an interesting decision of the Florence Court of First Instance (Tribunale di Firenze) that prohibited a travel agency, Visit Today, from using the image of Michelangelo's David for commercial purposes, including to sell unofficial tickets for guided tours inside the Galleria dell'Accademia.

At the time when the blog post was published the text of the interim decision was not yet available. Now readers can access and download it here, thanks to Katfriends Fabio Ghiretti (Mondini Rusconi) and Francesco Rossi (SIB Legal).

The decision (ordinanza) was rendered in the context of interim (emergency) proceedings that the Avvocatura dello Stato had brought against Visit Today pursuant to Article 669-octies of the Italian Civil Procedure Code.

As anticipated, the reasoning underlying the granting of the injunction against Visit Today is rooted within the provisions of the Italian Cultural Heritage Code, also known as Codice Urbani, notably Article 108 therein.

As explained by the Florence court [the translation from Italian is mine],

"Article 108 of the Cultural Heritage Code provides that the authority which administers a cultural good has the right to allow its reproduction, subject to an application and the payment of a royalty set by the authority itself, with the sole exception of reproductions of work for non-profit purposes.
There is no doubt that the sculpture at issue [David] is a cultural good, nor is there any doubt that the authority that administers it is the Galleria dell'Accademia, which is subject to the Ministry [of Culture]; it follows that its use for for-profit purposes done through the reproduction of its image falls within the cases for which the authorization of the administrative authority is needed."

While ordinary proceedings should follow the issuing of the injunction, for the time being the court ordered that Visit Today's advertising materials be destroyed, and prohibited it from using the David's image in Italy and all over Europe, whether by analogue or online means (including the undertaking's website). 

The court however rejected Avvocatura dello Stato's request to block completely access to Visit Today's website in that such measure would be disproportionate to the nature and scope of the infringement. 
[Originally published on The IPKat on 28 November 2017]

Comments

Post a Comment

Popular posts from this blog

AG Szpunar advises CJEU not to extend direct liability for trade mark infringement to operators of online marketplaces

Image
Is the operator of an online marketplace (more specifically: a hybrid marketplace, which also provides logistics assistance to third-party sellers through a fulfilment programme) using third-party trade marks itself, in accordance with Article 9(2)   EUTMR , when it displays, on its marketplace, advertisements of independent sellers’ goods that infringe such trade mark rights, which it also delivers to end customers? Is the perception of a reasonably well informed and reasonably observant internet user relevant when undertaking such an assessment? Gigi was also awaiting her delivery ... These are the key issues on which the Court of Justice of the European Union (CJEU) has been requested to provide guidance.  Joined cases  Louboutin/Amazon , C-148/21 and C-184/21  are referrals for a preliminary ruling made in the context of highly similar proceedings pending before, respectively, Luxembourg’s Tribunal d’arrondissement (C-148/21) and Belgium’s Tribunal de l’entreprise francophone de Br
Read more

The Louboutin/Amazon cases (C-148/21 and C-184/21) and primary liability under EU trade mark law

Image
Merpel will be also spending the weekend shopping for (stiletto heel) shoes   Last year The IPKat   reported   on a new referral to the Court of Justice of European Union (CJEU) from Luxembourg’s Tribunal d’arrondissement, asking whether the operator of a hybrid marketplace could be considered directly liable for trade mark infringement due to the presence of third-party listings of infringing goods on its platform. That referral ( C-148/21 ) has now been joined to another one ( C-184/21 ) made in separate but highly similar proceedings pending between the same parties (Louboutin and Amazon) before the Tribunal de l’entreprise francophone de Bruxelles. In a nutshell, these joined cases are asking the CJEU to determine whether and, if so, at what conditions the operator of an online marketplace may be found liable under Article 9(2) of the  EU Trade Mark Regulation 2017/1001  (EUTMR) for the display of advertisements and the delivery of infringing goods that are offered for sale and pla
Read more

Image rights and the unauthorized use of one's own portrait on cigarette packs

Image
Plescia's image and the warning that "Smoking causes strokes and disability" Can someone's own image be used without permission? This question may have different answers, depending on both the context in which the relevant image is used and the legal system considered. With particular regard to the latter, in countries that envisage 'image rights' (or publicity rights), the availability of protection may be even irrespective of the context in which one's own image is being used. Italian law This is for instance the case of Italy which, similarly to other continental European jurisdictions, has a long-standing history of protecting image rights.  The relevant provision in the Italian Civil Code, ie  Article 10 , states that if one's own image is displayed or published outside the cases in which the display or publication is allowed by law, or in situations which are prejudicial to the honour or reputation of the person, a court may
Read more