Grand Theft Auto 4 was developed by Rockstar North in Edinburgh and published by their New York
Ferrari, the Italian car manufacturer, have registered 3D design rights over their F40 and Modena 360 models, internationally as both cars and toys and in France as cars. Ferrari brought proceedings against Take Two for infringement of both their design rights and their copyright in the cars as works of art, and for “concurrence déloyale et parasitisme”.
Concurrence déloyale translates as “unfair competition”. This is a principle found in many continental legal systems. In France
The case went to the Paris Court of Appeal. Interestingly, the Court had no problem with the idea that the car was a work of art protected by copyright as well as by a design right. The Court rejceted the claim of infringement. Both on grounds of copyright and design right, there may have been points of similarity between the Turismo and Ferrari cars, but there where also differences. The differences were such that it wasn’t a copy, so not a copyright infringement. The Turismo had its own distinctive shape, and didn’t create the same impression to an observer, so did not infringe the design right. The Court also rejected the claim, of unfair competition, that Take Two were taking advantage of Ferrari’s reputation.
The Court considered various individual concerns. Ferrari cars bear their logo, featuring a horse rearing up on its hind legs. Turismo cars either have a horse sitting down or a hare on its hind legs. There was no risk of confusion according to the court, as various car manufacturers use powerful animals as a symbol and this was just an amusing detail for players of the game. The Turismo font was similar to Ferrari’s, but the court said that similar fonts were common amongst car manufacturers. The manufacturer of Turismos is called Grotti. Ferrari said this sounded Italian. The Court agreed but said that there were several Italian car manufacturers. The Court of Appeal therefore rejected the claim of unfair competition.
Ferrari appealed to the Cour de Cassation. The Cour de Cassation upheld the Court of Appeal’s decision, except on the question of unfair competition. They said that even though there were reasons to reject the individual points, the Court of Appeal should still have considered whether taken together all these things created an impression which might lead to confusion on the part of the consumer. They therefore remitted the case back to the Court of Appeal to reconsider.
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