Italian Embassy's Concerns over 'La Camorra' Trade Mark - Microsoft’s Shield for AI Users Against Copyright Claims

Trade Mark Contrary to Public Policy: Italian Embassy's Concerns Over 'La Camorra' Reference

In a development that follows the precedent set by the 2018 judgment of the General Court of the European Union (GCEU) on the trade mark 'La Mafia se sienta en la mesa' (“The Mafia sits at the table”) , the Italian Embassy sent an open letter to the owner of the Leonese restaurant 'La camorra - pizza e pasta'. In the letter, the Italian ambassador in Spain, Giuseppe Buccino Grimaldi, requested that the owner’s restaurant remove any reference to the Neapolitan Camorra from its establishment.

The letter criticises the casualness with which some commercial establishments associate the names of criminal organisations with apparently innocent activities such as the preparation and sale of food. In particular, the Italian ambassador expresses his concern at the way in which the name of the Neapolitan Camorra, a well-known criminal organisation, is associated with the craft of pizzaioli which has been recognised by UNESCO as intangible cultural heritage.

Though it must be noted that the Leonese restaurant has not filed or obtained a trade mark for its controversial brand, the Italian’s ambassador request refers specifically to concerns previously expressed by the GCEU in its ruling on the "The Mafia sits at the table" trade mark. In that case (T-1/17), both the European Union Intellectual Property Office (EUIPO) and the GCEU found that the mark was contrary to public policy. The Court based its decision on the fact that the mark manifestly promotes the criminal organisation known as the Mafia and trivialises its illegal activities, considering that the word element "La Mafia" evokes in the whole world a criminal organisation that undermines fundamental values of the European Union.

This case highlights the complexity and lack of homogeneity in the assessment of trade marks that could be considered contrary to public policy. While the above case concerned the trade mark "La Mafia se sienta en la mesa", this case concerns the use of the expression "La camorra". While some, especially in Italy, find these trade marks distasteful – and contrary to public policy – others may disagree. In other words, whether a business uses a name or term that may be perceived as problematic, as in the cases mentioned above, and the decision as to whether it is contrary to public policy may vary from jurisdiction to jurisdiction.

There is today no clear and uniform guidance on what terms are acceptable, creating uncertainty for both business owners and judicial authorities. Each case may depend largely on the subjective interpretation of the terms in question. The EUIPN (the network of IP offices in Europe, including the national IP offices of member states and the EUIPO) is currently working on the drafting up of Common Practices in the topic, having started rounds of consultations in 2021 in order to limit these territorial and cultural differences when it comes to assessing the registrability of trade marks in light of public policy or principles of morality.

It is important to keep in mind that the GCEU decision referred to the protection through registration of controversial signs, not to the legality of the use of such signs in commerce which can be protected under free speech rules. But when it comes to protecting your brand, it is important to weigh up the possibility of falling into bad taste or being interpreted negatively in certain cultural contexts. This is a reminder of the need to evaluate the potential impact of a name across national borders, especially if you are interested in protecting the brand in different countries. For more, we invite you to read our blog post published last year on the topic here.

Microsoft’s Shield for AI Users Against Copyright Claims

On 15 November, during Microsoft Ignite, its annual gathering for developers and IT professionals, Microsoft disclosed a significant expansion of its policy to protect enterprise customers from potential copyright infringement claims related to generative artificial intelligence (AI), specifically Azure OpenAI Service.

Under this new policy, customers who purchase a license for the service can rely on Microsoft to defend and indemnify them if they face a copyright infringement claim arising from their use of Azure OpenAI or the results generated by the service. Interestingly, this announcement closely mirrors OpenAI's previous announcement that it would cover the legal costs of customers facing copyright infringement claims arising from the use of its tools. For more details on OpenAI's announcement, we invite you to read our previous blog discussing, which you can see here.

Nevertheless, there are notable differences between the two policies. Importantly, Microsoft's enhanced policy does not automatically apply to all Azure customers. To take advantage of these new protections, subscribers must implement "technical measures" and comply with specific documentation requirements to mitigate the risk of creating infringing content using OpenAI models. Microsoft has not yet provided detailed information about these measures. In addition, users must use the "content guardrails and filters" built into Microsoft's AI offerings to maintain legal protection.

Recently, there has been considerable discussion about the relationship between Microsoft and OpenAI. In July 2019, Microsoft invested $1 billion (€916.5 million) in OpenAI, establishing Microsoft as the "exclusive" provider of cloud computing services to OpenAI. This partnership has been continuously expanded over the years with billions of dollars of investment from Microsoft.

A noteworthy distinction between the two companies is their approach to solving legal issues related to copyright. Microsoft, through Azure AI, is focused on developing technology specifically designed to detect and prevent the misuse of intellectual property through AI models. Azure AI Content Safety is a specific tool on this platform that reflects this focus on technological and active solutions to address legal issues related to copyright. OpenAI, on the other hand, is more focused on providing options and recourse for content creators affected by IP-related issues in generative models. Although OpenAI does not have a platform comparable to Azure AI, its activities are aligned with the research and development of advanced AI models. Its focus is on enabling content creators to control their training data and offer direct compensation. In short, while Microsoft, with its Azure AI, focuses on technological solutions for active detection and prevention, OpenAI takes a more creator-centric approach, offering options and direct compensation. Both are dealing with copyright issues, but with different strategies and approaches, in line with their respective priorities and areas of expertise.