For readers outside Italy who may not be familiar with her, Giusy Ferreri is one of the most distinctive voices in contemporary Italian pop music. She rose to fame after taking part in the first Italian edition of X Factor, and has since built a successful career thanks in part to her unmistakable vocal tone, immediately recognizable to the Italian public.
Now, following what may become a growing trend, Giusy Ferreri has registered her own voice as a trademark.
What exactly does this mean?
It consists of an audio file in which she simply says her own name.
As lawyer Alfredo Esposito explained in a recent article published by the Italian online magazine Agenda Digitale, sound trademarks have been recognised under European Union law since the 2017 reform. Registered sound trademarks include, for example, Netflix’s famous “ta-dum” and the roaring lion of Metro Goldwyn-Mayer.
Giusy Ferreri’s decision clearly belongs to the broader and constantly evolving relationship between artificial intelligence and creativity: a relationship still taking shape, continuously developing, and increasingly focused on anticipating future scenarios of protection and interaction.
Let us start from a basic premise: the recognition of a trademark grants its owner the exclusive right to commercially exploit that trademark as a distinctive sign.
AI, however, does not directly copy other people’s works. Rather, it “uses” a huge amount of data — it trains on it, as the technical jargon goes — in order to extract parameters that can then be used, based on the input received, to generate different creations. To give a simple example, we could ask an AI system to make a text of ours be sung in the voice of Giusy Ferreri.
Such an activity would therefore not necessarily fall directly within the scope of trademark protection, which strictly concerns the registered distinctive sign. In other words, our text sung by a virtual Ferreri would not automatically constitute a direct infringement of the trademark “Io sono Giusy Ferreri”.
It is therefore not easy to identify a direct practical effect, nor to determine precisely what the protection of a sound trademark by a singer can specifically safeguard in relation to their artistic activity as a whole.
What is certain, however, is that establishing distinctive signs in the artistic field, certifying the exclusivity of their exploitation, could have a twofold effect: on the one hand, it could act as a deterrent against those intending to use them without authorization; on the other, it could give the rights holder an additional tool to use, if necessary, in order to defend their rights.
Of course, at this stage it is impossible to imagine all future scenarios and all the potential issues that may arise in the relationship between AI and creativity. This is precisely why forward-looking protection initiatives are becoming increasingly common, through preventive evidence and precautionary forms of protection.
An additional layer of protection could, for example, consist in specifying in contracts that the artist holds the exclusive rights to exploit the sound trademark, thereby expressly regulating any form of use in that respect, especially in connection with AI.
Another possible effect, as lawyer Ferdinando Tozzi pointed out, could be the exploitation of the trademark for the benefit of the artist’s heirs.
In short, the range of possibilities is broad and, at present, not yet perfectly defined.
What can Patamu do in this field?
The timestamping service provided by Patamu is primarily an effective tool for establishing, with legal evidentiary value through the application of timestamps, the creation date of an idea or intellectual work.
In the case of trademark protection, however, the application of a timestamp cannot be compared, in terms of effectiveness and level of protection, to registration with the trademarks and patents office.
Nevertheless, the use of timestamps may still be partly useful in the management and defense of a trademark. Let us see how.
In the field of industrial property, and specifically in trademark law, there is a very important principle: prior use. In essence, Article 2571 of the Italian Civil Code states that the creator of a trademark who has not registered it may continue to use it, even if someone else has meanwhile registered it with the trademarks and patents office, provided that they can prove that the date of creation and use is earlier.
The creator of a trademark is therefore granted the right to continue using it if they can demonstrate prior use. To put it even more clearly: although proving prior use does not prevent someone who later registered the trademark from using it, it at least prevents the original creator and user from being barred from using it.
In the case of trademarks, Patamu’s timestamping service may be suitable for proving prior use, because it constitutes legal evidence certifying the deposit date — and therefore the possible earlier existence — of a creative content, including a trademark.
This is an immediate form of protection which, in a scenario that is still not fully defined and is in fact constantly evolving, may prove useful when someone believes they hold relevant and strongly identifying distinctive signs. In such cases, depositing the material may be a way to obtain a useful document that provides an initial rapid form of protection for the future and helps prevent unpleasant surprises.
It should of course be clarified that, while in the case of trademarks the application of a timestamp may be useful “only” to prove prior use, in the case of artistic and literary works the law provides that authorship of a work is attributed to the person who can prove that they created it. In this context, a timestamp such as the one provided by the Patamu Registry service remains an ideal tool.
Gianluca Cannavale
Patamu Legal