Law Decree No 135 of 25 September 2009 (through its Article 16) has disbanded the modifications introduced by Law No 99/2009 and again amended the so called ‘MADE IN ITALY’ discipline under Italian law. The new legislative framework entered into force on 11 November 2009.

As a general principle, in Italy, as under the Community legislative framework, there is no obligation to indicate the manufacturing country. In the event such indication of origin however is specified, this cannot be false or misleading. Such obligation dates back to the Madrid agreement of 1891 on the repression of false or deceptive indications of source on goods.

Under Article 517 Italian Criminal Code (CC), the sale of industrial products and copyright works under signs or trade marks that could mislead the buyer of the origin, provenance or quality is a criminal offence punishable by a prison term of up to 2 years or a maximum fine of Euro 20,000. The consolidated restrictive interpretation of the Italian Supreme Court, however, reduces the application of this Article to deception on the entrepreneurial provenance only, as the company is legally responsible for its product. Only with regard to PDOs and PGIs products, the concept of deception on the origin refers to the geographical origin. The penal sanction of Article 517 CC has further been extended to all kinds of goods, including agricultural products, through Article 49, (4) of Italian law No 350/2003.

The latter provision (as successively modified, the last amendment being September), further establishes that the wording MADE IN ITALY is false if used on goods not originating from Italy pursuant to the European legislation on the origin, i.e. the so called Community Customs Code established by Council Regulation (CE) No 2913/92. According to Article 24 of the Community Customs Code, “goods whose production involved more than one country shall be deemed to originate in the country where they underwent their last, substantial, economically justified processing or working in an undertaking equipped for that purpose and resulting in the manufacture of a new product or representing an important stage of manufacture”.

A recent 2008 decision of the Italian Supreme Court has confirmed that a fruit salad containing foreign fruit but mixed with national fruit, and the dosing of which took place in Italy (being deemed as their last, substantial economically justified processing), could legitimately bear the expression ‘MADE IN ITALY’.

This criteria applies to all types of products, and therefore also to agricultural products, with the exception, also in this case, of PDOs and PGIs products, due to their link with the geographical origin.

The new Law Decree No 135/2009 has now introduced :

• a further distinction between, on the one hand, the wording “MADE IN ITALY” and, on the other hand, expressions, such as “100% MADE IN ITALY”, “100% ITALIAN” or “ALL ITALIAN” (in any language), or images (e.g. the Italian national flag or reproduction of the “Boot” representing the Italian Peninsula) accompanied by 100%, which indicate that a product is entirely produced in Italy, laying down that legitimate use of such expressions presumes that design, project, manufacturing and packaging exclusively took place on Italian territory.

The improper use of the above wordings is made punishable with the imprisonment term and maximum fine foreseen by Article 517 CC increased with a third; seizure of the goods involved is possible.

• In addition, Law Decree No 135 establishes an administrative sanction of up to Euro 250,000 and administrative seizure in the event of use of a trade mark which may lead consumers into believing that the product originates from Italy (pursuant to the EU legislation on origin) but that at the same time does not bear a clear and obvious indication that the product is produced abroad or otherwise does not totally exclude confusion of the true origin.

A clear cut example could be the use of a mark “Bella Italia” on a product entirely made in Turkey but one could also think of the use of a trade mark consisting of an Italian surname or of a well-known Italian expression or slogan, such as “Mamma mia” or “Buon appetito”, for e.g. pasta entirely made in China, without bearing clear indications that the entire production took place abroad.

By providing such sanction limited to deceptiveness on Italian origin only, the provision might be unconstitutional and in violation of Art. 28 (ex 30) of the Rome Treaty.

The text of the Law (in Italian) can be found on : http://www.gazzettaufficiale.it/guridb/dispatcher?service=1&datagu=2009-09-25&task=dettaglio&numgu=223&redaz=009G0145&tmstp=1254298280909 .