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Gustavo Ghidini and Giovanni Cavani

The aim of this paper is to define the scope of protection afforded to ‘marks with reputation’ under EU Directives and Regulations. The authors argue that the protection granted to said marks also in relation to ‘not similar’ goods requires that, having regard to all the circumstances of the specific case, the consumer could be induced to reasonably suppose that the trade mark owner is somehow (industrially or commercially) connected with the circulation of products bearing an identical or confusingly similar sign. If this possibility cannot be assessed, it should be denied that the use of that sign either brings an unfair advantage to the third party user, or is detrimental to the distinctive character or the repute of the renowned trade mark. In sum, the thesis here submitted states that the protection afforded to renowned trade marks, even ‘extra moenia’ (ie beyond the risk of confusion in a strict sense between the products), anyway presupposes that a misleading message is conveyed to the consumer, inducing her/him to ‘transfer’ the reputation of the latter's products to those of the third party user's products, with the effect of altering the consumer's purchasing choices.