One of the most historical luxury cars has been recognised as a copyrightable work of industrial design in Italy.

It seems that this is an important IP season for luxury cars.

Only a couple of weeks after the decision rendered by the General Court in the case involving the 1963 Porsche 911 design[1], the luxury car world received another decision, issued this time by an Italian Court and definitely more favourable.

The decision has been handed down after Ferrari filed preliminary injunction proceedings against another Italian company who had announced plans to produce “modern replicas” of the rare and most expensive classic car on the market.

The Maranello-based company alleged that the design of the new car presented by the sued party was showing a model evidently infringing both Ferrari’s EU three-dimensional trademark and copyright of the unique and iconic Scaglietti 250 GTO.

With the decision handed down on 20 June 2019 (Docket no. 3973/2019), the Court of Bologna fully reversed the first instance order, which had initially rejected Ferrari’s application, denying infringement of the invoked IP rights. The June decision elevated the so-called “Gioconda on wheels” to a work of industrial design deserving copyright protection, under art. 2 n.10 of the Italian Copyright Law.

According to the Court, the Ferrari 250 GTO meets both the requirements of “creative character” and “artistic value”, necessary for an industrial design product to be protected as a work of art.

The Court emphasized that the originality of the design in question and, in particular, the creative personalization of its lines, shapes and aesthetic elements have made the Ferrari 250 GTO a unique example and a true icon of the automotive sector. In addition, the constant recognition of the Ferrari 250 GTO design in numerous official awards, publications and periodical exhibitions, together with the exorbitant economic value of the very few samples of the car placed on the market (one of only 39 samples has been sold for a record $48.4 million at RM Sotheby’s annual collector car sale) evidently witnessed its artistic value[2].

Once it was recognised that copyright protection was granted to the Ferrari 250 GTO, the Court clarified that the reproduction of a work of industrial design, having creative character and artistic value, constitutes copyright infringement if, despite any differences between the original work and the contested product, the latter takes over the individualising characteristics of the protected work.

In a nutshell, apart from the very few elements differentiating the contested model from the original Ferrari ─ which should in any case be attributed to the evolution of automotive technology and to increased security requirements ─ the infringing party has basically reproduced exactly the creative and artistic lines, shapes and aesthetic elements that allow the Ferrari 250 GTO to access copyright protection.

The Court also declared that the advertising activity related to the Ferrari 250 GTO design amounts to an unfair competition act due to the illicit exploitation of the reputation of the famous Ferrari car which has allowed the defendant to better place its products on the market.

Ferrari 250 GTO thus becomes the first car-work of art in history: who will be next?