The origin of the lawsuit between Ferrari and Philipp Plein dates back to August 2019, after the publication of some posts on Plein’s personal Instagram profile.

Specifically, the German designer published some pictures and videos showing one of his Ferrari with a pair of sneakers (the “Moneybeast” model, on sale for almost €5000) resting on the trunk of the car.

Only few days after such publication, Ferrari's lawyers warned Plein inviting him to remove the above mentioned contents, within a 48-hour term, as they constituted illicit use of the Ferrari’s trademark.

Ferrari therefore accused Philipp Plein of having exploited the notoriety of Ferrari’s brand to advertise its products and to confuse consumers, leading them to assume the existence of a partnership between Ferrari and Plein’s brand in relation to such specific model of shoes.

Ferrari also believed that the posts published by Plein were offensive, since they also “objectified” the female bodies of the models included in the pictures. Therefore, the posts were considered not in line with the values promoted by Ferrari, which did not intend to be associated with such type of content.

In response, Plein approached Ferrari's CEO directly, stating to be a dissatisfied customer and that he did not intend to proceed with the removal of the posts.

The Court of Milan was called to rule on the matter and, in June 2020, ordered Philipp Plein to delete all the posts in which the Ferrari trademark had been unlawfully represented and to pay €300,000 as compensation for damages.

In order to make a conscious use of social networks, every user must be aware that a picture posted online could constitute an infringement of intellectual property rights of third parties.

While this concept should be familiar to every user, influencers and public figures with a significant social media following should be required to pay specific attention to these issues when posting content that depicts trademarks or other IP-protected contents without the express permission of the owner.

Philipp Plein's personal Instagram profile has more than 2 million followers. As such, the posts violating the Ferrari trademark were potentially able to reach a huge number of users.

The assessment of an infringement of third parties’ trademarks in connection with posts published on social media is based on whether such publication has a commercial or advertising purpose.

The Court of Milan held that the Instagram posts published by Plein had a clear commercial purpose (despite the fact that the pictures had been posted on the designer's personal profile and showed a car owned by him) and that Plein’s products would be perceived as more exclusive and desirable thanks to the connection with the Ferrari brand.

The advertising market is undergoing a major change and indirect - subliminal advertisements promoted through online and social networks are becoming more and more common.

Indirect advertising is a clear and explicit message that appears on unusual spaces, but not mentioned as such. Subliminal advertising, instead, isn’t evident. This practice is banned by Italian law but only with respect to TV advertising and although film and television are a fertile ground for this kind of promotion, new challenges have emerged above all on social networks. Indeed, as the world wide web represents a new opportunity to express our thoughts and interests and tastes and a new way of learning and sharing information and content, companies have also begun to use them in an explicit or tacit manner.
On the one hand, we have real advertising spots and sponsorships, although not fully controlled: Facebook and Instagram, for example, check that ads don’t have an illegal content or prohibited by rules but they don’t control the accuracy of the information communicated, nor their congruity with the regulation, since there is no discipline code to be respected.

On the other hand we notice serious “product placement” proliferation within the most clicked profiles.

In this regard, the British Competition and Markets Authority stood up against disguised advertising, which is not recognizable in photos and videos posted on social media. Recently also the American Federal Trade Commission, for the first time addressed the issue, asking “web influencers” to emphasize that hidden recognizable through hashtags or comments.

However, there are no specific rules governing indirect and subliminal and the terms of use of social media like Instagram, provide and restriction. The question arises as to whether consumers, who shall not be subject to untruthful and deceptive ads, have also the right to distinguish the advertising contents from a “lifestyle tips”.

Recently, the Italian National Consumer Union has questioned the Competition and Market Authority (AGCM) to ask for the legitimacy of indirect and subliminal advertising on social networks. The legal basis for this controversy is the article 22 of the Consumer Code which asserts that the commercial intent must be explicitly stated if it is not obvious from the context or if it is capable of misleading the consumer.

The AGCM should soon clarify the issue and provide adequate information both on the relationships between producer and influencer, and on the obligation to declare the advertising purpose of the posts.

Meanwhile, Instagram has launched a new tag, "Paid Partnership with", so that users can include it in their stories and post. Alternatively, many bloggers, including the most famous Chiara Ferragni, have started using some "claim-hashtags" such as #ad, #advertisement, or #advertising to highlight the commercial purpose of their photo, protecting the consumer.