PP350
Analítico de Periódico
SARTI, Davide
La funzione distintiva dei marchi individuali, collettivi e di certificazione / Davide Sarti
Rivista del Diritto Commerciale e del Diritto Generale delle Obbligazioni, a.119 n.4 (2021), Parte prima, p.649-702
DIREITO INDUSTRIAL / Itália, PROPRIEDADE INDUSTRIAL, MARCAS, CERTIFICAÇÃO
The function of individual, collective, and certification marks — In the Cotton Flower and Öko-Test cases, the CJEU has cleared its view on the essential distinctive function in individual, collective, and certification marks. The Court suggests that all marks guarantee the identity of the origin of goods and services. Other functions, such as that of guaranteeing the quality of that product or service, might be fulfilled, but may not be deemed as essential even for collective and certification marks. The article suggests that the Court assumes a general essential function of guaranteeing that the marked goods or services are supplied under the control of a single decision-making centre which is responsible (not necessarily for their quality, but more broadly) for their commercial strategies of offer: provided these strategies can be appreciated and rewarded according to the preferences of the public. For individual trademarks, the strategies of offer are essentially based on the responsibility of the quality of “finished” products and services and are appreciated through direct purchasing experiences. For collective and certification trademarks, the strategies of offer may pertain to social values or standard qualities of products manufactured independently by different enterprises: in such cases, the strategy cannot be appreciated through direct purchasing experiences (which necessarily relate to the qualities of the finished product guaranteed by the individual manufacturer) and must be “set in the stone” of a publicly accessible regulation of use. According to this view, the distinctive function of the identity of origin justifies the protection of marks as a general reward for the entrepreneurial ability to satisfy the preferences of the public: a reward which is not to be made necessarily dependant on the likelihood of confusion and may confer rights on any use that takes unfair advantage of (or is detrimental to) other (not essential) functions of the mark.