The expression “Neapolitan pizza” finally protected

On December 18, 2022 the new Implementing Regulation (EU) No. 2022/2313 came into force through which the European Commission officially included “Pizza Napoletana” in the register of “Traditional Specialities Guaranteed” (TSGs).

Therefore, from that date, the expression “Neapolitan pizza” may be used only to distinguish products that exactly comply with the characteristics of preparation defined in the official document approved by the Commission (so-called Disciplinary Regulations) upon proposal of AVPN (Associazione Verace Pizza Napoletana) and APN (Associazione Pizzaiuoli Napoletani).

The fact that Neapolitan Pizza is a Guaranteed Traditional Specialty is certainly not news.

Neapolitan pizza has, in fact, been on the TSG register since 2010 without reservation of the name, with the consequence that until new Regulation came into force anyone could use the expression “Neapolitan pizza” to distinguish the famous traditional Italian dish but could not affix the acronym "TSG" to it.

However, the above Regulation introduces new rules requiring, in particular, that in order to use the expression “Neapolitan pizza” the Disciplinary requirements must be met, with the consequence that, in their absence, pizza can no longer be identified and named on restaurant menus or on restaurant signs as “Neapolitan”, under application of a penalty, as well as, clearly, the prohibition of use of the expression.

But what exactly is TSG certification for?

In this regard, reference should first be made to the discipline of TSG certifications contained in Regulation (EU) No. 1151/2012, which generally concerns quality schemes for agricultural products and foodstuffs.

The quality regime is guaranteed by three European certifications (P.D.O., P.G.I., TSG), which can be attributed to food products or preparations with certain characteristics related to the territory.


The objectives of "TSG" Certification

This Regulation aims to safeguard traditional production methods and recipes by helping producers communicate the characteristics and production methods of these products to buyers, also in order guarantee transparency of information and fair competition among producers.

For example, consider the hypothesis in which a consumer intends to buy a pizza (or any other typical product): the latter might be attracted by a slogan bearing the expression “the real Neapolitan pizza”.

Such an expression could therefore cause confusion among the consumers and consequently unfairly favor one business over another when used in the absence of the requirements for TSG-certified “true Neapolitan pizza”.

Thus, the purpose of certification is to safeguard producers and guarantee market balance.


The requirements for TSG protection and the “Disciplinary Regulation” of Neapolitan pizza

A name can be registered as a TSG if it designates a product made by a production method that corresponds to a traditional practice and/or if it is made from traditionally used raw materials or ingredients (Art. 18).

In order to obtain registration, a so-called “Disciplinary Regulation” must be presented and, according to Article 19, must indicate the following information:

  1. the name whose registration is requested (in our case, in fact, “Neapolitan pizza”);
  2. the description of the product, including the main physical and chemical characteristics, demonstrating the specificity of the product;
  3. the basic elements attesting its traditional character.

The requirements for Neapolitan TSG pizza are, as it is obvious, about the raw materials, shape and flavor, as well as dough and baking.

As for the raw materials they are wheat flour, brewer's yeast, drinkable natural water, peeled and/or fresh tomatoes, sea salt or table salt, and extra virgin olive oil. Other ingredients that may be on the list are: garlic and oregano, Buffalo Mozzarella from Campania PDO, fresh basil and Mozzarella TSG.

However, it is not only the ingredients that identify the product.

In fact, the Disciplinary Regulation requires that the shape must be "wavy," the diameter must not exceed 35 cm, and the raised edge must not exceed 2 cm in height.

Other requirements, however, concern texture, states that the dough should be soft, elastic and not sticky, and flavor, which should be "savory" and mixed with the typical acidity of tomato and cooked mozzarella.

As for leavening, it must be two hours in the first stage and, after the formation of the buns, another 4-6 hours. With reference to baking, on the other hand, the pizza maker must use a wooden shovel and use only wood-fired ovens at 485° and the time must not exceed 60-90 seconds.



Thanks to the registration in the SGT registry, it is now possible to prohibit the use of the expression “Neapolitan pizza” by anyone who does not make pizzas according to the rules of the aforementioned Disciplinary Regulation, with penalties (including heavy ones) imposed on violators.

This could lead to the (almost paradoxical) consequence that many of Naples' historic pizzerias may be forced to remove the designation "Neapolitan pizza" from their signs and menus.

In light of the new regulation, therefore, all Italian (and even Italian abroad) pizza makers and restaurants will have to pay special attention to how they identify their pizzas and their business in order to avoid the penalties under the regulations in case of violation.

That’s not enough. Another aspect that needs special attention is intellectual property rights.

In particular, in the process of registering a trademark, it is necessary, not only that a mark does not infringe earlier identical and/or similar trademarks, but also with all terms that have TSG (or PDO, PGI) certification, such as the name "Neapolitan Pizza”.

Although such new regulation implies many limitations for all subjects who have never adapted their product to the traditional characteristics of Neapolitan pizza, we believe that the new Regulation is acceptable because it finally gives proper protection to a typical and globally appreciated product, as well as to its vast public of consumers.

Brompton case - can the shape of the famous folding bike model "Brompton" be protected by copyright?


Last June 11th represented an important date for all copyright enthusiasts and for the experts in this field of law.

On such date, the European Court of Justice has issued a judgment of considerable interest in relation to a point of law raised in the course of a counterfeiting action of the well-known bicycle model commenced by Brompton Bicycle Ltd against the Korean company Chedech/Get2Get before the Liège Business Court (Belgium).

(1. Brompton model) (2. Chedech/Get2Get model)


The English company Brompton Bicycle Ltd had patented the well-known folding bicycle model in 1975, protecting the distinctive feature that allows the product to take three different positions, namely: (i) folded position, (ii) open position and (iii) intermediate position (which allows the bicycle to remain balanced on the ground).

However, once the 20-year period had expired and Brompton's industrial property rights over the bicycle folding mechanism had expired, other companies, such as Get2Get, started to offer products with the same characteristics on the market. As a result, Get2Get was sued by Brompton, which claimed that its copyright on the product had been infringed and, consequently, asked the Belgian court to order Get2Get the withdrawal of the bicycle model it had marketed from all the stores.

In its defense brief, the latter argued that the particular aspect of its product was attributed by the technical solution sought, which was capable of enabling the bicycle in question to take the three different positions and that, therefore, such an aspect could not be protected by copyright law since its protection was exclusively provided by patent law.

On the contrary, the applicant replied that the three positions of the Brompton bicycle could be obtained through different shapes, others than those identified for that bicycle by its creator and that, therefore, its shape could be protected under copyright law due to that creative characteristic.

Therefore, the Liège Business Court having found that under Belgian law any creation which expresses itself in a particular form and which is original is protected by copyright law, appealed the European Court of Justice to demand whether such protection should be excluded if the shape of the object is "necessary to achieve a technical result" and what criteria should apply for the purposes of that assessment.

In addition, the Belgian court submitted a further question to the ECJ, asking whether the following criteria should be taken into account for assessing the requirement of a given shape in order to obtain a technical result:

  • the existence of other possible shapes achieving the same result;
  • the effectiveness of the shape to achieve that result;
  • the willingness of the alleged infringer to achieve that result;
  • the existence of an earlier patent, later expired, on the procedure for achieving the technical result pursued.

Analysis of the judgement

The Court of Justice, appointed by the Belgian judge, has issue an historic decision stating that the shape of a product can be protected under copyright law even if it is partially intended to obtain a technical result.

Specifically, the ECJ moved from the notion of work, as defined in Articles 2 and 5 of Directive 2001/29, in order to establish that it necessarily consists of two elements:

  1. the originality, which implies that the work is an intellectual creation belonging to its author, and
  1. the free and creative expression of the author of the work in a factual reality.

Therefore, with reference to the first element, the ECJ found that a work can be considered original even in cases where its creation was dictated by technical evaluations, in all those cases where it reflects the personality of its author, showing the latter's free and creative choices.

On the contrary, it has been specified that, in accordance with settled case law within the Court, in all those cases where the creation of a work has been exclusively determined by technical considerations, rules or other constraints which leave no room for creative freedom, it cannot acquire the status of a work and therefore it cannot enjoy the protection granted by copyright law (as stated in Cofemel – Sociedade de Vestuário SA v. G-Star Raw CV, C‑683/17[1]).

In reaching those considerations the Court did not follow, first of all, the theory of the multiplicity of forms, observing that, for the purposes of establishing the originality of a given work, it cannot be regarded as a straightforward factor the consideration that the same technical result can also be achieved through different shapes of the product.

With regard to the second element, the Court also stated that the concept of “work” in Directive 2001/29 necessarily implies the existence of an object which can be identified with sufficient precision and objectivity (see Cofemel above).

It follows that an object which satisfies the requirement of originality will be eligible for protection under copyright law, even if its creation was determined by technical considerations provided that such determination did not prevent the author from reflecting his or her personality in that object by showing free and creative choices.

Likewise, as also stated in Article 2 of the WIPO Copyright Treaty, the criterion of originality cannot be met by those components of an object which are solely characterized by their technical function since, otherwise, it would be possible to monopolize ideas to the detriment of technical progress and industrial development.

It must be noticed  that, in the present case, although the particular shape of the bicycle is necessary to obtain a specific technical result, namely the suitability of that product to take the said three positions, the Court nevertheless does not, a priori, exclude the possibility that the peculiarity, given by the folding mechanism of the bicycle, may become a creative characteristic of the author.

As the matter of fact, in the judgment of last June, the ECJ established that the national Judge will have to assess whether the bicycle in question constitutes an original work resulting from an intellectual creation.

In this framework (also considering that only the originality of the product will have to be assessed), the existence of other possible shapes that would lead to the same technical result will not be considered as decisive in order to assess the factors that guided the choice made by the creator.

Similarly, the willingness of the alleged infringer will have no relevance in the context of such an assessment, whereas the existence of prior patents on the work should be regarded as merely indicative and not decisive for the purposes of its attribution to copyright protection.


The judgment under exam had, without doubt, the merit to apply properly certain key principles of European copyright law, derived from the tradition of common law, namely the dichotomy theory, which separates idea and expression, the originality theory and "merger doctrine", with reference to the assumption that some ideas can be expressed in a comprehensible way only in one or a limited number of ways.

However, there is still room for some criticisms relating, firstly, to the failure of this ruling to refer to the relevance of the creator's intentions in the context of his creation, given that, in his conclusions presented at the hearing on 6 February 2020, the Advocate General had stressed its importance for the purposes of identifying the character of the creativity and originality of the work and that the failure to refer to that aspect would contradict what was already stated in Case C-310/17 (i.e. Levola Hengelo BV v. Smilde Foods BV[2]).

A further issue in the judgment under examination should be recognized in its failure to identify an exhaustive list of factors that can provide a parameter in the assessment of the originality of the work in a similar order of cases (as in Doceram[3]).

Consequently, this assessment will be left, on a case-by-case basis, to the national courts of the Member States and, therefore, it could lead to a lack of uniformity with respect to its application.

It cannot be excluded that the Belgian court, which now has to issue a decision, in the light of the Court of Justice's ruling, may recognize the creativity and originality of the Brompton bicycle and its folding mechanism, given that, in some recent rulings in France on aspects similar to those taken into account by the ECJ in the present case, different type of IPRs have been granted to the holder (e.g. patent and design), since they were not found to be exactly based on the same aspects of the product.

Finally, it is worth noting that, in Italy as well, copyright protection has recently been granted to the shape of a car[4] and a motorcycle[5], as well as to the shape of after-ski boots[6].

We therefore have no other option than to wait for the ruling of the Liège Business Court, aware that the relevance of the ruling delivered by the European Court of Justice will have such an impact that it will determine in any case an evolutionary effect of copyright law in Europe.



[3] Court of Justice 8 March 2018 (Second Chamber), Case C-395/16, Doceram GmbH v CeramTec GmbH ECLI:EU:C:2018:172;
[4] Bologna Tribunal 20 June 2019 (order), Ferrari s.p.a. v Design Modena s.r.l., available at content/uploads/Ferrari-250-GTO_prima-automobile-nella-Storia-a-vedersi-garantita-la-tutela-autorale_Tribunale-di- Bologna-ordinanza-del-20-giugno-2019.pdf.
[5] App. Torino 12 dicembre 2018, Zhejiang Zhongneng Industry Group and Taizhou Zhongneng Import and Export Co. v Piaggio s.p.a., Torino Tribunal 6 April 2017, Zhejiang Zhongneng Industry Group and Taizhou Zhongneng Import and Export Co. v Piaggio s.p.a., in Giur. ann. dir. ind. 6528. The matter has been dealt with, from a different angle (a challenge to the validity of the later Community design based on prior Italian designs and trade marks, as well as copyright), by EU General Court 24 September 2019 (Sixth Chamber), Case T-219/18, Piaggio & C. s.p.a. c. EUIPO e Zhejiang Zhongneng Industry Group Co. Ltd.
[6] Milano Tribunal 12 July 2016, Tecnica Group s.p.a. v Gruppo Anniel s.n.c. di Simeoni Anna & C. and Gruppo Coin.