Italy: Labelling fake perfumes, snabogados

Labelling fake perfumes as “Falso d’Autore” (“authentic fake”) is not an easy way out for counterfeiters anymore. It is well known that the perfume industry is huge and it is equally notorious that fake perfumes of famous brands have been sold at shops, markets and the streets for decades.
In Italy the “fake perfume industry” has been quite creative and, in order to escape from criminal implications (in Italy the sale of fake products is a criminal offence)1, has adopted a curious escamotage, i.e. labelling the packaging with the set of words “Falso d’Autore” which could be roughly translated as “original copy” or “fake of an artist” (in the pictures 1 and 2 below the arrows point to the label “Falso d’Autore”).
In order to better understand the scenario it is however necessary to take a step back and briefly explain the origin of the expression “Falso d’Autore“. This lettering is commonly used in the art environment to refer to painting reproductions entirely hand crafted by professional and talented artists. In particular, it refers to the common technique used in the past centuries by aspiring painters who learnt the painting technique by copying paintings of great fame. Nowadays, the market of paintings called “Falso d’Autore” is still very prolific and is regulated by the law2.
In the case of the fake perfumes industry, counterfeiters have labelled their products with the expression “Falso d’autore” with the intention to clearly communicate to consumers that the perfumes so marked are a (legitimate) copy of the originals and, by so doing, to avoid any legal implication.
Surprisingly, for a certain period of time this escamotage was encouraged by an (in) famous decision taken by the Italian Supreme Court in 2000 which held that, as the products involved were of poor quality and sold at a very cheap price, forgery was evident and, as a consequence, the conduct of the defendant did not fall within the relevant criminal provisions. Of course, this decision raised many critical remarks!
Luckily, more recently the Supreme Court reversed this interpretation. As a matter of fact, in a case decided in 2012, whilst the defendants argued that they were not liable as by adding the label “Falso d’Autore” to the packaging there was no risk to mislead the consumers, the Supreme Court had a different opinion: the Judges ruled that the criminal provisions about forgery protect the public trust from an objective perspective and not from a subjective one.
Additionally, this interpretation has been reinforced also by a decision taken by a civil court in 2013 (Tribunal of Naples) establishing that the trademark “Falso d’Autore” (fig. 3) is null and void since it was able to evoke an illicit activity (counterfeiting)3.
In conclusion, it is not sufficient to tell the truth when the product is a fake!

Laura Millano