AIPPI Young Members Italian Group Webinar report: “Trademarks, Advertising and Art Between Morality and the Right to Obscenity – A Dialogue Between the EU, Italy, and Spain”

On 16 April, the AIPPI Young Members Italian Group hosted a new session in its Industrial Property Aperitifs series, dedicated to the theme “Trademarks, Advertising and Art Between Morality and the Right to Obscenity – A Dialogue Between the EU, Italy, and Spain.”

The webinar featured contributions from Sonia Sarroca, Laura Brandoli and Maria Giulia Contatore, who explored how the concepts of public order and morality intersect and are applied in different ways in the fields of trademarks, advertising, and the arts – offering an engaging comparative overview spanning Spain, Italy, and the broader EU legal framework.

Discussion

The discussion began with an overview of trademark law, where morality and public order serve as absolute grounds for refusal and invalidity. This principle was first established in the Paris Convention for the Protection of Industrial Property (Art. 6quinquies, B.3) and later reiterated in Directive (EU) 2015/2436 (Art. 4.1.f), Regulation (EU) 2017/1001 (Art. 7.1.f), the Italian Industrial Property Code (Art. 14.1.a), and the Spanish Trademark Law (Art. 5.1.f).

In the absence of a statutory definition for the concepts of morality and public order, the Court of Justice of the European Union and the practice of the Intellectual Property Offices (in particular, the EUIPO) have progressively shaped their interpretation. Through the examples of the cases “The Mob Sits at the Table,” “COVID + IDIOT,” “Screw you,” the “Latin cross” and “The Ill-born craft beer,” among many others, the discussion confirmed that such concepts are historically and culturally fluid, influenced by varying religious, social, and political influences across time and jurisdictions.

However, one recurring theme emerged: the application of public order and morality in trademark law is consistently highly restrictive. This narrow interpretation is justified by the need to preserve the distinctive function of trademarks and to protect the public interest, ensuring that no one may profit by using signs that are offensive to the values of civil society.

The discussion then shifted to advertising, focusing on the Italian Code of Marketing Communication Self-Regulation, which under Article 9 prohibits indecent, vulgar, or repugnant communications, while Article 10 bans marketing communications offensive to moral, civil, or religious beliefs or that fail to respect human dignity.

Starting from the early 2000s up to the present day, the presentation walked through several well-known advertising campaigns reviewed by Italy’s advertising standards authority. These case studies helped draw a clearer line between marketing communications deemed simply in poor taste, and thus not subject to censorship, and those crossing into outright vulgarity or blasphemy, which violate the Code. It became evident that, as in trademark law, the commercial nature of the expression cannot justify offensive or blasphemous contents.

Unlike trademarks, however, decisions to censor marketing communications often hinge on where and when they appear. Billboards, for example, are visible to everyone at all times and marketing communications on such media are more likely to breach the Code. Timing also matters: avoiding protected time slots for minors, for example, can help advertisers stay within the Code’s limits.

The presentation closed by spotlighting the rise of shock advertising, i.e. campaigns that use bold, provocative visuals or language to spark dialogue on social issues. Yet, even these socially driven messages have often faced censorship (and self-censorship), much like traditional marketing communications. A sign, perhaps, that there is still a lack of sensitivity to the many forms advertising can take in today’s media landscape?

The conversation then moved to the arts field. Unlike trademarks and advertising—where morality and public order operate as filters or preventive censorship—art enjoys broader constitutional protection as a form of personal expression. Article 33 Italian Constitution grants it “privileged status”, while Article 529 of the Criminal Code states that “a work of art is not considered obscene” unless aimed at minors for non-educational purposes.

Artistic works, even when provocative or controversial, are protected by copyright. They are not excluded for being offensive or morally questionable, and an artist’s moral rights remain intact even if their work is seen as obscene. Moreover, artworks created illegally or in violation of public decorum—such as street art—still receive authorial protection.

Art often clashes with prevailing moral norms, facing censorship or removal when deliberately provocative. In this context, the notion of a “right to obscenity” emerges—not as a right to gratuitous vulgarity, but as a legitimate form of expression that challenges norms through satire or irreverence. Art is often uncomfortable and transgressive, but this is part of its cultural role.