“Thun”Decision of the Supreme Court of Cassation of Italy, Civil Division Section 1 (Corte Suprema di Cassazione, Sez. 1 Civ.) 14 October 2022 – Case No. 30331

Being displayed in just one exhibition can fulfil one of the prerequisites for recognising artistic value which, even if not entirely concurrently, must refer to: the recognition, in cultural and institutional circles, that the item concerned possesses aesthetic and artistic qualities; display in exhibitions or museums; publication in specialist journals; the awarding of prizes; the acquisition of such a high market value as to transcend that linked solely to its functionality; or its creation by a renowned artist.In order to ascertain whether products can be confused as a result of slavish imitation (here: objects depicting the animal world where there is no trade mark confusion), they must be compared not through detailed and distinct examination of their individual distinguishing features but through their overall impact, taken as a whole, from the perspective of the consumer.The fact that the prohibition of slavish imitation is intended to ensure that the imitator does not create confusion with competitors’ products must also be considered.Fair and equitable quantification of damages is legitimate only on the condition that evidence of the harm done exists and provides plausible parameters for quantification.Equitable liquidation must assume the existence of certain compensable harm, and that it is impossible or extremely difficult to prove the precise amount of that harm.The court must indicate, even if only briefly and within the scope of its discretion, the criteria followed to determine the extent of the harm and the basis on which it decided on the amount of damages.Said quantification must necessarily take into account the specific economic and organisational conditions of the injured party and cannot be based on general parameters that are valid for any type of business or profession.