Studio Legale Pistone

TUTELARE IL BRAND NELL’ECONOMIA 4.0 – Prima parte

Il marchio di un’azienda contiene al suo interno un universo di significati.
Mentre nelle fasi iniziali di attività, esso indica per lo più il prodotto / servizio offerto, col tempo esso diviene messaggero di tutte quelle ulteriori qualità caratteristiche dell’impresa come ad esempio: affidabilità, lusso o low cost, cura dei dettagli, customer care, eco compatibilità ecc. 
Attraverso il marchio, quindi, si esprime la propria impronta commerciale e si crea un legame di fidelizzazione con il target di consumatori prediletto, al punto che, col tempo, esso assurge a patrimonio immateriale dell’impresa. 
Affinché essa possa adeguatamente sfruttare tale legame e difenderlo da pratiche anti concorrenziali, se non anche illecite, è indispensabile procedere preliminarmente alla registrazione del marchio. 
In particolare, i vantaggi che possono derivarne sono: 
– aumento del valore dell’impresa attraverso il patrimonio immateriale;
– migliore posizionamento sul mercato e aumento del potere contrattuale;
– sfruttamento esclusivo del marchio con conseguente possibilità di:
a. concederlo in licenza (es. mediante contratto di franchising) dietro pagamento di royalties; 
b. difendersi contro ogni forma di abuso (contraffazione, utilizzo non autorizzato ecc.). 
Il rischio che queste pratiche anti concorrenziali possono produrre non è “semplicemente” quello di ledere l’immagine dell’azienda ma altresì di ingenerare confusione nei consumatori e, dunque, indurli a scelte errate. 

Il marchio d’impresa ha il suo principale riferimento normativo nel Codice della Proprietà Industriale.
L’art. 7, in particolare, recita: “Possono costituire oggetto di registrazione come marchio d’impresa tutti i segni suscettibili di essere rappresentati graficamente, in particolare le parole, compresi i nomi di persone, i disegni, le lettere, le cifre, i suoni, la forma del prodotto o della confezione di esso, le combinazioni o le tonalità cromatiche, purché siano atti a distinguere i prodotti o i servizi di un’impresa da quelli di altre imprese”.
E’ quindi possibile distinguere:
– Marchio denominativo o verbale, composto solamente da parole senza particolari riferimenti grafici;
– Marchio patronimico, costituito dal nome proprio di una persona (molto utilizzato, ad esempio, nel mondo della moda ove si ricorre al nome e cognome dello stitilista);
– Marchio figurativo, costituito da un logo (si pensi ad esempio alla mela di Apple);
– Marchio suono o acustico, composto da jingle musicali che diventano “must” in ambito pubblicitario (si pensi ad esempio al motivetto della pubblicità dei processori Intel);
– Marchio di forma o tridimensionale, con cui sarà possibile registrare la particolare forma del prodotto o la sua confezione;
– Marchio di colore; probabilmente la più controversa categoria di marchio in quanto i colori, in linea generale, sono accessibili a tutti. Tuttavia, esistono celebri casi di marchio di colore che, avendo acquisito una inscindibile identificazione con l’azienda, ne sono divenuti patrimonio immateriale; basti pensare al color lilla/viola della Milka e al giallo arancio della nota casa di champagne Veuve Clicquot.
In ogni caso, affinché un marchio possa essere suscettibile di registrazione e tutela nel nostro ordinamento deve essere: 
nuovo;
dotato di capacità distintiva;
lecito e corrispondente al principio di verità. 

Nel prossimo articolo entreremo nel merito di questi requisiti e analizzeremo altri importanti aspetti della tutela del #brand.

A cura dell’Avv. Giuseppe Civiletti (partner dello Studio Legale Pistone)


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