Cars, Sneakers and Social Media: Ferrari vs. Philipp Plein

Marta Cagnoli

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 Italian Antitrust dictates guidelines on the Relationship between Clients , Agencies and Infuencers.

On March 15, the Antitrust Authority concluded a misleading advertising procedure, involving for the first time 9 micro influencers who worked in the launch of the "Pan di Stelle" chocolate cream produced by Barilla.

For some time now, the Antitrust Authority has been dealing with various issues of hidden advertising published through new media, as the recent Alitalia / Alberta Ferretti case.

Also in the Pan di Stelle case, the Antitrust Authority has not imposed any sanctions against the parties involved, accepting the commitments that Barilla and the micro-influencers are willing to take on.

The Antitrust Authority has positively assessed the commitments made by the parties involved in the proceedings, which are beginning to emerge as real guidelines, both for the companies launching the marketing campaign and for the influencers promoting the products/services covered and for the agencies mediating the relationship between customers and influencers.

The guidelines that emerge from the Antitrust Authority's decision can be summarized as follows.

As for companies:

1. These should use a contractual standard in their dealings with influencers that contain penalty clauses (such as reduction of fees and/or penalties and/or suspension of payments) against influencers in case of breech;

2. Contracts between the client and the agencies should include clauses aiming at making the agencies responsible.

As for agencies, these must carefully monitor the work of the influencers and take prompt action, also at the customer's request, to ensure compliance with the Guidelines.

With regard to micro-influencers they should:

1. include, in posts containing the image or mention of products received from brands to which they have no obligation to carry out promotional activities, hashtags such as #suppliedbybrand or #brandgift or #fornitodabrand, or other similar wording;

2. include, in posts published as part of a collaborative relationship with the brand, hashtags such as #suppliedbybrand or #advertisingbrand or #advertisingbrand;

3. refrain from publishing the content authorized and selected by the commissioning brands, unless the contract expressly provides for it with the relevant constraints. This decision sets out guidelines that give greater certainty in contractual relations between companies and influencers.

Linked Out.

The most striking aspect in the strict regulation of the new Italian code of professional conduct, which will be valid from December 15, is the fact that it quite clearly excludes the possibility for almost as many as 100.000 Italian lawyers to use not only of Facebook Pages or online advertising, but even LinkedIn.

There seems to be little room for misunderstandings. In fact the new wording of article 35 clearly states that online communication for law firms shall be possible "only on websites with their own domain name without possibility of redirecting information from another website."

This rule in not only surprising because clearly out of time with respect to the current digital communication context, but also because it punishes inappropriate behavior, like the use of local directories or even Google Maps.

The new Italian professional code of conduct seems to preclude the possibility for a law firm to defend and improve their reputation through the use of digital media and comparison with users.

While other professionals such as architects and designers show a steady increase in the Net as a community space to create and animate discussion groups not only for professionals, the new Italian professional code of conduct limits competition within the legal profession and transparency towards citizens.