European Union (and in this case the protection lasts 3 years starting from said disclosure). The application of this protection also to the shape, packaging and presentation of food is facilitated by the change of perspective that was achieved in the implementation of the EU Directive no. 98/71/CE3 and the corresponding Regulation (EC) no. 6/2001 on the Community model4,and this is even more true after these texts were updated in 2024 with the approval of EU Directive No. 2024/2822 (“the Recast Directive”) and the corresponding EU Regulation No. 2024/2823 (‘“the Amending Regulation”). Today, in fact, access to protection as a model/design is no longer subordinate to the fact that the shape gives the product a special ornament (as was the case in Italy until 2001), but depends on a completely new requirement: the individual character, defined as the ability of the design/model to produce a different impression on the informed user, compared to the shapes already known in the European Community5. Therefore, the protection today concerns the market value of product shapes, not only their aesthetic value, and as such it is frequently invoked for the shape of new foods (such as for new types of pasta), for their external presentation and even for the layout of food shops or restaurants. 3 See Galli, L’attuazione della Direttiva comunitaria sulla protezione di disegni e modelli, in Nuove leggi civ. comm., 2001, 883 e ss. 4 On the new balance of interests that has been outlined in this way between the different types of protection of shapes, see extensively Galli-Bogni, The “new” levels of protection of the shape of products, between communication and innovation, in Riv. Ordine Cons. Propr. Ind., 2008. 5 Both the novelty and the individual character are defined by the Directive and the corresponding Regulation on Community Design in terms of “difference” from the relevant antecedents. The second requirement differs from the first because it seems to refer to a “qualified” difference, while with regard to novelty, it has been argued that instead “a sensible modification of a dimension, or of the colour, or of another formal characteristic, or even an application without modification on a product other than the one incorporating the previous form, will be sufficient to affirm the novelty of the form in question” (so Scordamaglia, La nozione di “disegno e modello” ed i requisiti per la sua tutela nelle proposte di regolamentazione comunitaria, in Riv. dir. ind., 1995, I, 113 et seq., p. 135). From the wording of the Directive and the Regulation (“the general impression it arouses in the informed user”), it is clear that this qualification is not necessarily to be sought from an aesthetic point of view, as the “special ornament” of the old Italian law, but may also consist simply in the capacity of the shape to impose itself on the consumer’s attention: this results in a downward widening of the scope of the shapes that can be protected as a model, accentuated also by the prescription likewise contained in the Directive and the Regulation, according to which, in ascertaining the individual character of a shape, the margin of freedom from which the author has benefited in creating the design is taken into consideration. In fact this prescription transposes the doctrine of the so-called crowded art, that had already accepted by a part of our case law in relation to the ascertainment of the existence of the special ornament (see, for example, Court of Milan, 6 October 1995, in Giur. ann. dir. ind., 1997, 123 ff.), according to which in the sectors in which numerous products with similar shapes coexist, even modest differences with respect to pre-existing forms can give rise to a valid model. In the sense that they possess individual character, and can therefore be registered as a model, even those shapes which, although without “acquiring importance in the final purchasing decisions” of consumers, are nevertheless “suitable for establishing a ‘privileged contact’ with the public”, drawing their attention to the product, see Sarti, Marchi di forma ed imitazione servile di fronte alla disciplina europea del design, in AA.VV., Marchi e forme distintive: la nuova disciplina, Milan, 2001, at page 249 ff. 267 THE PROTECTION OF FOOD CREATIONS
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