For a penny. The new company at 1 euro.
[:en]Talking a few days ago with young entrepreneurs, operating in the start-up sector, we wondered about the actual advantages that the introduction of the new 1 Euro company (SRLS - Società a Responsabilità Limitata Semplificata), introduced on 29.8.2012 by the Dm 138/2012.
To get a clearer idea of the features brought about by the new Art. 2463-bis of the Civil Code, it is recalled that:
- the company may be established by natural persons who have not completed their thirty-five years of age on the date of incorporation;
- the memorandum of association must be drawn up by public deed in accordance with the standard typed model;
- the share capital must be between 1 e 10.000 €, subscribed and fully paid up at the date of incorporation;
- the contribution must be made in money and be paid to the administrative body;
- the directors must be chosen from among the shareholders;
- the memorandum of association and entry in the commercial register are exempt from stamp and secretarial duties and no notary fees are payable (registration tax of € 168 and the annual fee to the Chamber of Commerce must therefore be paid).
Reading the regulatory text and also checking the comments of various blogs, law journals and newspapers, it can be seen that this form does indeed bring cost relief (no notary fees are due), but that it does not actually solve what are the real problems of entrepreneurs under 35, namely:
- preferential tax regimes;
- tools for facilitate access to financing bankers or subsidies state;
It is necessary to remember that the problem of social capital is in fact relative, suffice it to say that the 10 thousand euro of capital required to set up a normal limited company, do not remain frozen in the bank, but may be used by members. In fact, once established, the sum is actually paid into the company's account and can be used to buy machinery, computers, pay salaries and suppliers, register trademarks and so on. Furthermore, if there are at least two partners, it is sufficient to pay EUR 2,500, a sum that can in turn be used for the fulfilments just mentioned.
In addition to this, the costs for starting up a company will always have to be borne by the young entrepreneurs, who, no matter how lean and light the company may be, will still need to invest a few thousand euros to operate it (computers, machinery, suppliers, etc.).
Lastly, it is noted that the memorandum of association, having to be drafted in accordance with the standard typed model, is, according to a first reading of the provision, not subject to any variation. This feature, which certainly makes it possible to avoid notary fees, is in fact a limitation that is by no means negligible. Suffice it to say, in fact, that such standardisation would make it impossible for the company's managing partners to activate all the options that the law allows in the articles of association of an LLC. These include:
the power to grant special rights to shareholders;
- the possibility of agreeing on clauses concerning the transfer of shares in the capital (such as non-transferability, pre-emption, approval, clause disposing of the share in the event of the death of the shareholder, co-sale clause, etc.);
- the possibility of agreeing on causes of termination other than those provided for by law;
- the possibility of stipulating grounds for exclusion from the company;
- the provision, in the case of more than one director, of forms of administration other than the BoD;
- the possibility of providing for a longer deadline for the approval of the budget than the statutory one;
- the possibility of providing for forms of decision-making by the shareholders other than the general meeting;
- the possibility of giving shareholders the competence to decide on matters other than those attributed to shareholders by law;
- the possibility of providing for meeting quorums other than those prescribed by law.
It will certainly be interesting to see how this instrument will be used by new entrepreneurs and to see if this means is an effective incentive for new entrepreneurship.
[:]
The transferability of iTunes products to third parties.
[:it]It is becoming increasingly common and easy for the network user to be driven to buying via the internet products, such as music tracks or films.
The ease of purchase, the possibility of remote access to one's account, the transferability to mp3 players or smart-phones, means that consumers increasingly prefer to use multimedia rather than physical media.
One wonders at this point whether the difference between these two modes of 'purchase' is simply limited to a product choice, or whether there are actual practical-legal consequences.
On this point, the Hollywood actor, Bruce Willis, recently made a criticism that can certainly be a good starting point for a brief legal reflection. Can the iTunes library be bequeathed?
Apple has stated, to the surprise of many users, that such assets are not transferable to third parties.
In fact, following a careful reading of the iTunes Terms and Conditions of Useit is found that not so much the individual files, but the (usage) licences for the digital content are defined as iTunes products. The main difference, therefore, between the purchase of a CD and a digital album is that in the former case, ownership of the physical good is actually transferred, whereas in the latter, one simply buys a licence for use staffhence the licence to use the file itself for purely personal and non-commercial use.
Also, if you read the iTunes Terms and Conditions of Use, you will see that the holder of an iTunes account has no right to modify, rent, lease, lend, sell, distribute, or create the purchased licences, (also referred to as non-transferability clause). Therefore, the account holder has the right to use the files for purely personal purposes, without any possibility of transferring them to third parties and thus bequeathing them.
This topic, which will always appeal to a wider segment of the market, is therefore not without interest, considering that online purchasing increasingly concerns not only music files, but also films and e-books.
[:]
The unlawful use of the 'meta-tag'. Trade mark infringement and unfair competition?
[:it]For meta-tag refers to those keywords, usually encoded in HTML, which, although not shown on screen, are nevertheless used by search engines in order to index the various sites. Through a meta-tagThus, the operator of a site can enter keywords concerning his or her own web page (c.d. keyword meta-tag) in order to make it through the use of search engines.
Potentially, therefore, a site operator could insert the name of a very famous brand as a keyword in order to have its site appear among the first results each time a user performs a search using the name of the well-known brand, or, insert the brand of one of its competitors in order to appear among the results each time a search is performed by a consumer indicating the brand of the competing company as a keyword. (E.g., the company XYZ S.R.L., which operates in the furniture manufacturing sector, uses the trademark of the competitor company 123 S.P.A. as meta-tag)
The question arises in doctrine and jurisprudence as to whether such conduct may in itself constitute an offence, given that the name or trademark of others is not placed externally on the site, but remains visible only to search engines.
There are potentially two possible offences: unfair competition and trade mark infringement.
1. Unfair competition
As for unfair competition, the Court of Milan, in the now well-known 'Solatube' case, ruled that: "the use by a competing company of a 'meta-tag' reproducing the trademark of the legitimate owner company constitutes unlawful competition imputable under Art. 2598 no. 3 civil code.as determining the constant and undue matching in the search results on the various web search engines capable of leading to a diversion of customers in violation of the principles of fair trading."[1]
2. Trademark infringement
The aforementioned judgment, which establishes the existence of a violation of Art. 2598 no. 3 civil code., states that the use by a competing company of a meta tags reproducing the trade mark of another company does not constitute an infringement of the trade mark as it lacks any distinctive function of services and goods.
On the contrary, according to authoritative doctrine, if a party uses as a meta-tag a trademark of one of its competitors, such practice would also constitute a hypothesis of infringement of the exclusive trademark right pursuant to Articles 12 and 22 of the IPC (Industrial Property Code). Such an infringement would, in fact, extend to non-related goods and services if a well-known trade mark is used as a meta-tag.[2] In support of this thesis, part of the doctrine holds that it is also reasonable to recognise the meta-tag advertising function in a broad sense.[3]
3. Subliminal Advertising
Finally, part of the doctrine is inclined to believe that the use of this practice might even be considered as a form of subliminal advertising Article 5.3 legislative decree 145/07, which provides that advertising must be clearly recognisable as such.[4]
REVIEW
- the use by a competing company of a 'meta-tag' reproducing the trade mark of the legitimate proprietor company constitutes an unlawful competition offence imputable under Article 2598 no. 3 of the Civil Code
- according to authoritative doctrine, the use of one's own competitor's trade mark as a meta-tag would also constitute an infringement of the exclusive trade mark right under Articles 12 and 22 of the IPC
- Finally, part of the doctrine is inclined to consider that the use of such a practice could even be regarded as a form of subliminal advertising covered by Art. 5.3 Legislative Decree 145/07
[1] Court Milan, 20/02/2009, Riv. dir. ind. 2009, 4-5, 375 (note TOSI)
[2]Riv. dir. ind. 2009, 4-5, 375 (note TOSI); E. TOSI, Diritto privato dell'informatica, DNT, 12, 490 ff.; CASSANO, Orientamento dei motori di ricerca, concorrenza sleale e meta-tag, in Riv. dir. Ind., Milan 2009, 56
[3] Cf. the TOSI, in the note to the Milan Court judgment of 20.2.2009: "in support of the foregoing, the broad provision of Article 2(A) of Legislative Decree No. 147 of 2 August 2005 [...] states that 'advertising shall mean any form of message that is disseminated, in any manner whatsoever, in the exercise of a business activity for the purpose of promoting the sale of goods, the performance of works or services'.
[4] BONOMO, The domain name and its protection. Typology of confusing practices on the internet, 247 ff.; PEYRON, Internet meta-tags as a new means of trademark infringement and hidden advertising: a US case, in Giur. It., 1998, I, 739 ff.
[:]
Internet law II. The trade mark and the TLD.
[:en]The domain name consists of a Top Level Domain (TLD) and by a Second Level Domain (SLD). THE TLD can essentially be of two types, generic (gTLD) (when it is appropriate to distinguish, in principle, the sector of operation - e.g. .com for commercial activities and .org for organisations non-profit) or geographical - country code Top Level Domain (ccTLD) (when it is capable of signalling the 'virtual' location of the computer).
Consider, that there is no guarantee that, in practice, to a geographical domain, for example .en for Italy, .fr. for France and so on, actually corresponds to a computer located in the territory evoked by the ccTLD.
The assignment of domain names is carried out by bodies whose task is to establish the procedures for registering domains and assigning them to applicants marked by the country code '.it'. Each state has its own bodies in charge of these functions, and each country operates independently, as the various states are distinguished by their own country codes (.de, .fr, .nl, .be). It will therefore be possible for the same domain name to be used by different parties in different states and for the addresses to differ only by country code (e.g. '.www.esempio.it" e www.esempio.de"). On the basis of the above, the Internet being a worldwide platform, regulated by independent state bodies, it is evident that the risks and opportunities for confusion between domain names used by trade mark owners operating in different parts of the globe, will be increasingly numerous and frequent.
The question therefore arises as to whether the owner of a trade mark registered in Italy may take action to prevent a third party from using a domain name containing his company's trade mark if it is characterised by a different TLD (e.g., "the trade mark of the company"). www.abcd.it and www.abcd.fr).
Here too, a distinction must be made between renowned and non-renowned brands
a) renowned brand cases
According to doctrine and case law in the case of trade marks with a high reputation, the problem of the TLD does not even seem to ariseas the counterfeiting of the sign is also in re ipsa related to the registration of the domain name, regardless of the TLD it has and even in the absence of actual use.[1]
b) cases of non-renowned trade marks
In trade mark cases so to speak sic et simpliciter, it does not seem tenable to assert that the owner of a registered trade mark, which is neither well-known nor well-known, can oppose the registration of an identical or similar domain name, but with a different TLD (e.g. .it and .de).
In fact, since the law on trade marks applies only in a national context, the owner of a trade mark registered in Italy is not the owner of a right to exclusive use of the trade mark outside the national territory and cannot therefore prevent a third party from registering abroad a domain name equal or similar to that trade mark, but with a different TLD.
In any case, it must be considered that if the third registers the domain name abroad in order to direct users to its own site where it in fact advertises or sells certain competitive goods or services, in which case the territory in which the cotraffactive sign is placed on the network is irrelevant (e.g. formaggitaliani.it and formaggitaliani.com).
Indeed, given the global nature of the Internet communication system, each user, including Italian users, will be able to connect to the site corresponding to the domain name possibly confusable with the registered trade mark.[2]
It can therefore be considered that "the proprietor of the trade mark registered in Italy is not the owner of a right to exclusive use of the trade mark outside the national territory, and cannot prevent a third party from registering abroad a domain name equal to or similar to that trade mark within a [different] geographical or thematic TLD, unless its use for offering for sale or advertising goods or services results in an infringement of the right.[3]
In conclusion, therefore, it is held that the owner of an Italian trade mark cannot prevent a third party from using a domain name confusable with the said trade mark if it bears a different TLD, at least that such registration has infringed the proprietor's right to use the trade mark, since it is likely to direct users to a website on which identical, similar or related goods or services are offered or advertised.
On the basis of the above, however, it is considered necessary, given the complexity and specificity of the discipline, for this opinion to be used as a guideline and for individual cases to be analysed specifically.
- The TLD can essentially be of two types, generic (gTLD) (when it is used to distinguish, the sector of operation (.com), business (.org) or geographical (country code Top Level Domain ccTLD) when it is capable of signalling the 'virtual' location of the computer (.it, .de)
- The question therefore arises as to whether the owner of a trade mark registered in Italy may take action to prevent a third party from using a domain name containing his company's trade mark if it is characterised by a different TLD (e.g., the "TLD" of the company's trade mark). www.abcd.it and www.abcd.fr)
- In the case of well-known trade marks, the problem of the TLD does not even seem to arise, since the counterfeiting of the sign is also in re ipsa linked to the registration of the domain name, regardless of the TLD it has and even in the absence of actual use
- in the cases of non-renowned trade marks can therefore be considered as '.the proprietor of the trade mark registered in Italy is not the owner of a right to exclusive use of the trade mark outside the national territory, and cannot prevent a third party from registering abroad a domain name equal to or similar to that trade mark within a [different] geographical or thematic TLD, unless its use for offering for sale or advertising goods or services results in an infringement of the right
[1] Court of Reggio Emilia 30.5.2000 (ordinance); Peyron, Giur. it. 2001, 96.
[2] Court of Reggio Emilia 30.5.2000 (ordinance)
[:]
Internet law part I: the trade mark and the domain name.
[:it]To be able to enter into this topic, it is necessary to take a preliminary look at some concepts that touch on both industrial law and the customary rules of the Internet world.
First of all, it is necessary to see how the domain name is framed within theItalian system. The legislator
regulated this figure for the first time with Art. 22 of the IPC (Industrial Property Code), introducing the prohibition to adopt as "a domain name a sign which is the same as or similar to another's trade mark where, because of the identity or similarity between the proprietors of those signs and the goods or services for which the trade mark is adopted, there exists a likelihood of confusion on the part of the public which may also consist in a likelihood of association between the two signs".
The domain name, therefore, may also be relevant as a distinctive sign because in the light of the progressive 'commercialisation' of the Internet, the entrepreneur no longer uses just any domain name, but requires a specific Internet address to make the products or services offered by his commercial site identifiable to surfers.
The doctrine and jurisprudence, even before the introduction of the aforementioned definition within the c.p.i., recognised the distinctive capacity of the domain name, recognising that "it does not seem justifiably contestable that the domain name in this case also has a distinctive character of the user of the site - capable of contributing to the identification of the same and of the commercial services offered by it to the public by means of the interconnection of networks (Internet) - with some apparent affinity with the figure of the sign, as the (virtual) place where the entrepreneur contacts the customer and concludes the contract with him".[1]
This interpretation is again confirmed following the introduction of the aforementioned Article 22 IPC by a recent decision of the Court of Milan of 20 February 2009, which definitively confirms the dominant jurisprudential orientation in favour of the recognition of the distinctive nature of the domain name formed prior to the IPC.[2]
Trademark protection regulations are also flanked by the network rules. On the Internet, in fact, the principle of "first come, first served", in on the basis of which a domain name is assigned to the first applicant, regardless of whether it conflicts with the rights of others. Domain allocation bodies are not obliged to carry out any prior checks to prevent/avoid registration - such as domain name - of signs or trade marks that are confusingly similar to a registered trade mark by a person other than the owner of the distinctive sign. In other words, under the current method of allocation of domain names, all names not yet registered (such as domain name) are freely registrable by anyone on the basis of the priority of applications, regardless of whether or not those names correspond to more or less well-known names or distinctive signs of third parties.
At this point, it is necessary to analyse the actual method of application of these rules and, to do so, it is necessary to subdivide trade marks into two macro-groups, namely non-renowned and renowned marks.
(a) cases of tomorrow's trade mark with no reputation
In the first case, if the domain name is identical or similar to another person's trade mark not having a reputation, two requirements must be met in order for that person to be able to prevent the use of that domain name:
- l'identity or similarity of the mark with the domain name (e.g. the registered trade mark is ABCD s.r.l. and the third party uses a coincident domain name www.abcd.it);
- l'identity or similarity of products or services offered. (both operate in the same branch of the market);
In that case, the principle of speciality of trade mark protection provided for and regulated by Art. 2569(1) of the Civil Code will apply.[3] and Article 20 para. 1 c.p.i. (a) and (b).
Obviously, the closer the products and services on offer are, the greater the public's confusion as to where they actually come from.
Therefore, even if there is no identity between the product sectors of the non-renowned brand and the domain nameif the bad faith of the holder of the domain name, that activity is deemed to be capable of precluding the holder of the trade mark from using it on the Internet as a further distinctive sign and therefore objectionable under Article 22 of the Code of Civil Procedure. [4]
(b) cases of tomorrow name of renowned trade mark
In the case of a trade mark with a reputation or high renown, the use of a domain name similar to the trade mark shall be deemed to be undue if the use of the sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark.[5]
ABSTRACT
- the legislator, for the first time, regulated the domain name in art. 22 c.p.i. (industrial property code)
- the dominant legal orientation in favour of recognising the distinctive nature of the domain name
- in cases of domain name of an unrecognised brand name if the domain name is identical or similar to another person's trade mark, there must be identity or similarity of the trade mark with the domain name and identity or similarity of the goods or services offered in order to inhibit use of that domain name
- in cases of domain name of a renowned trade mark, it is considered undue to use the domain name similar to the trade mark also in cases of use of signs for goods and services which are not similar if the use of the sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark
[1] Court of Milan, Order of 10 June 1997 - Amadeus Marketing SA, Amadeus Marketing Italia s.r.l. c. Logica s.r.l.
[2] "The domain name has a twofold nature, technical for addressing the logical resources of the Internet network and distinctive. As a distinctive sign - constituted by the part characterising the domain name called Second Level Domain - it may come into conflict with other signs in application of the principle of the unitary nature of distinctive signs laid down by art. 22 c.p.i.". Tribunale Milano, 20.02.2009, Soc. Solatube Global Marketing Inc. and others v. Soc. Solar Proiect and others.
[3] art. 2569, para. 1. c.c.[3] "A person who has registered in the form prescribed by law a new trade mark capable of distinguishing goods or services shall have the right to use it exclusively for the goods or services for which it is registered".
[4] Court of Milan, order of 10 June 1997 "The unlawful practice of confusion known as domain grabbing consists in registering, with the Naming Authority, another person's trade mark as a domain name, for the sole purpose of appropriating the notoriety of the sign, constitutes in itself an act of infringement - censurable pursuant to art. 22 IPC - also in so far as it is an activity capable of precluding the owner of the trade mark from using it on the Internet as a further distinctive sign".
[5] Court Milan, 20.02.2009 "The unlawful practice of confusion known as domain grabbing consists in the registration, with the Naming Authority, of another person's trade mark as a domain name, for the sole purpose of appropriating the reputation of the sign, constitutes in itself an act of infringement - censurable pursuant to Article 22 of the Code of Criminal Procedure - also in so far as it is an activity capable of precluding the proprietor of the trade mark from using it on the Internet as a further distinctive sign"; Court Modena, 18.10.2005 "The assignment of a domain name (website name) corresponding to a trade mark - even if only de facto, but well known - may constitute usurpation of the sign and unfair competition in so far as it entails the immediate advantage of linking one's activity to that of the proprietor of the trade mark, taking advantage of the reputation of the sign and taking unfair advantage thereof. Moreover, the infringement of a trade mark - perpetrated by its use as the domain name of an internet site - is not precluded by the fact that that use has been authorised by the appropriate authority for the registration of domain names, nor by the fact that the proprietor of the trade mark has not previously registered the same name with that authority.".
[:]