The Italian Supreme Court has recently emphasised that, in criminal prosecutions under Articles 473 and 474 of the Italian Criminal Code, a conviction for committing an offence against the public faith may be secured on proof of post-sale confusion.

In the first decision (cass. pen. Sez. II 08-09-2008, No. 34846, 8 September 2008), the local court in San Remo acquitted the defendant of receiving counterfeit watches bearing the trade marks GUCCI, CALVIN KLEIN, LA COSTE, CARTIER and ROLEX and storing them for sale on the ground that the consumer of luxury goods would not mistakenly believe that a street vendor was selling genuine luxury brands at token prices. Accordingly the public faith was not harmed. The Attorney General's appeal was allowed by the Supreme Court: in its view “public faith” means the faith of the general public -- not merely the actual consumer -- in the trade marks. The general public includes all possible end-users of the goods. Accordingly it is not necessary that the purchaser be deceived, since the risk of confusion must be assessed with regard to the subsequent circulation of the goods during the normal course of their use and not at the moment of the purchase. Discussion of two further decisions of the same court to similar effect can be found in the source of this post: Peter McAleese (Barzanò & Zanardo, Rome), writing in the INTA Bulletin, Vol. 63, No. 23, 15 December 2008.