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Saturday, 16 September 2017

Maradona sues Dolce&Gabbana over 2016 'MARADONA' jersey

The Dolce&Gabbana
'MARADONA' jersey
A few days ago a number of newspapers (mostly in Italian and Spanish) reported that former Argentinean footballer Diego Armando Maradona has sued Italian fashion house Dolce&Gabbana.

The reason?

According to Corriere della Serathe Pibe de Oro (as Maradona was nicknamed) claims that fashion designers Domenico Dolce and Stefano Gabbana have unduly exploited his name for commercial reasons. 

During a fashion show held in the city centre of Naples [Maradona played for Napoli for a few years, and in that city he reached the peak of his career] in 2016, a model wore a jersey bearing the number 10 [ie the number that Maradona used to have] and the word 'MARADONA'. The jersey itself also had the same colour combination of Napoli's jerseys, ie light blue and white.

The complaint filed before the Milan Court of First Instance is not publicly available, so it is not entirely clear on what grounds the proceedings have been brought. 

What seems clear, however, is that Stefano Gabbana has not taken the news of the lawsuit very well. A few days ago, on Instagram he called Maradona a "morto di fame" [literally, "starved", but see here for further explanations and examples].

The question that arises is whether an action of this kind has any likelihood of succeeding.

Maradona's
Napoli time
It should be stated at the outset that claims of (mis-)appropriation are not uncommon in the fashion world, and some argue [eg here and here] that cultural misappropriation is actually necessary in this sector. 

What's in a name?

In the case of Maradona, the main complaint seems to relate to the misappropriation and misuse of his name. 

Article 6 and 7 of the Italian Civil Code expressly recognize the right to one's own name. In particular, Article 7 states that a person who may suffer a prejudice from the undue use of their name by a third party can request a court order that would put an end to such use, as well as the compensation of any damages. 

As regards the notion of 'prejudice', Italian case law seems oriented in the sense of including also prejudices that are merely potential. However, case law also suggests that prejudice may not subsist in relation to the use of a name that is well-known.

In addition, while the notion of 'use' includes direct uses of one's own name, eg cases of impersonation, and uses of one's own name for a business, product, or fictional character, it is unclear whether use of one's own name on a product without any apparent intention to use the name for designation purposes [as it would appear to be the case here] would fall under the scope of Article 7 of the Civil Code. 

All this does not exclude that there is plenty of situations in which celebrities and athletes license the use, not just of their likeness, but also voice and name. These scenarios appear to relate, however, more to situations in which the celebrity at issue somewhat endorses a certain product, service, or activity. 

Stefano Gabbana's Instagram feed
Other grounds?

Other claims might relate to Maradona's trade marks. From a search on TMView, it would appear that Maradona himself owns a valid 'DIEGO MARADONA' registered trade mark. However, one might wonder whether use of 'MARADONA' by Dolce&Gabbana could be regarded as use in a trade mark sense and such as to infringe the 'DIEGO MARADONA' trade mark. 

Similarly, any claims of unfair competition under the Italian Civil Code (Article 2598) by Maradona and/or Napoli (considering also the fact that the Dolce&Gabbana jersey intends to recall a Napoli jersey - incidentally, any design rights vesting on the jersey are likely expired) would require - in the case at hand - a demonstration that: 

(1) use, by Dolce&Gabbana, of Maradona's name is likely to create confusion with the products or activity of the claimant(s) in their capacity as a competitor, or 
(2) such use is contrary to the principles of professional fairness and likely to damage the claimant(s)'s business activity.

Italian law also expressly provides for the protection of one's own image (Article 10 of the Italian Civil Code). In the past there have been decision that have held that Article 10 can come into consideration also in cases in which one's own image is not used but merely evoked [as, for instance, it was with Audrey Hepburn's image in the decision commented here]. However, it is doubtful whether this is the case here.

In conclusion, the action at issue presents a series of challenges that might eventually lead to its dismissal. It will be interesting to see how the case unfolds and what decision the Milan Court of First Instance reaches. In the meantime: what do readers think?

3 comments:

Anonymous said...

It's doubtful that a Napoli kit with the number 10 and "Maradona" written on the back evoke the image of Maradona?! What else could it possibly evoke? In club football the 1980's Napoli kit with the number 10 is an iconic image of Maradona. The front of the shirt even has a football crest and says "Napoli" on it.

This is nothing more than an (expensive) knock-off football kit. The type you might find on sale on any cheap market stall or dodgy website. Interesting to see that D&G are going down this route. What next, NOKE tracksuit tops or two-stripe jogging bottoms?

Anonymous said...

I see it just like you, anonymous. However, on which legal basis can Maradona claim damages and/or cease-and-desist? I doubt that the hand of god will help him with this, he will have to rely on his head.

Anonymous said...

Based solely on the article, I would suggest that Maradona can take action for the protection of his own image due to the evocation of his image from this cheap-looking knock-off football shirt. Importantly, Napoli have actually retired the number 10 shirt due to its strong link with Maradona so anybody selling a no. 10 Napoli shirt must be doing it to evoke Maradona's image... particularly if they write Maradona on it in big letters.

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