(Commentary on judgement of the Frankfurt am Main Court of Appeal - Az. 6 U 211/20)
After a long struggle, changes of ownership of the pizzeria and several degrees of judgement, justice has finally been done!
On 1.5.2018, a pizzeria called 'Falcone & Borsellino' opened for the first time in Frankfurt am Main. Inside the premises, a photo of actor Marlon Brando in the role of 'The Godfather' was displayed, with Tony Gentile's famous photo of the two judges, Giovanni Falcone and Paolo Borsellino, in a lecture on the subject of the Mafia and politics opposite. A symbolic photo for all Italians, a shot depicting the friendship, the complicity of two judges, broken a few months later when first Falcone (23.05.1992), then Borsellino (19.07.1992) were assassinated by the Mafia.
On the blackboards and menus displayed pizzas that mixed names of mafia clans with names of paladins of justice, guns and bullet holes. Special offers for policemen and students were advertised. In one corner of the website, a Wikipedia blurb reminded -for those who did not know- that the two judges were assassinated by mafiosi.
Prof. Maria Falcone, the Falcone Foundation and photographer Antonio Gentile were contacted to find out if they knew about it and if they consented to the use of the name and images in this context. The answer was absolutely no!
Thus began the first legal action against the first owners. When an important decision was reached, the pizzeria closed. It remains inactive for a few months, sells, and the new owner reopens with the exact same furnishings, names, etc. A fresh start is made. A warning is sent inviting them to drop the name and remove the references to Judge Falcone, but the pizzeria does not think it is doing anything wrong.
The first instance lawsuit (Frankfurt am Main District Court, 6th Sect., Az. 2-06 O 322/19):
In 2019, the first-instance lawsuit against the second owners of the pizzeria began, in which Prof. Maria Falcone and the Falcone Foundation -defended by our law firm- sued for the protection of the right to the name under § 12 BGB and the post-mortem rights of Judge Giovanni Falcone, which had been sullied by the pizzeria's use of it for mere commercial purposes.
The plaintiff's defence brought to the judge's attention the words spent by the Frankfurt Court of Appeal in favour of Mrs Prof. Falcone in a hearing held against the former owner of the pizzeria. She brought testimonies from various authorities, local associations dealing with the topic of legality, scholars and professors recalling the importance that the work of Judges Falcone and Borsellino had - and still has - for Germany. Newspaper articles in which the figures of Falcone and Borsellino who fought for justice are recalled every time the subject of the Mafia is touched upon. However, this was not enough according to the Chief Judge, who went as far as to deny at the hearing that the Mafia was a current problem in Germany as well.
On 25.11.2020, a judgement was issued in which the plaintiff's application was rejected, denying the requested protection because too much time had passed and the 'fight against the Mafia' was a topical subject from thirty years ago and no longer relevant. Judge Falcone (in the opinion of the panel of judges) was now known only to criminologists and criminal prosecutors of a certain age, so there was no impairment of the rights asserted in the action.
The conclusion reached by the Tribunal was disconcerting and could not be accepted by those who, like Mrs Prof. Falcone and the Foundation, organise projects throughout Europe to educate young people about legality, to fight against these systems. It was therefore decided to appeal.
The second instance case (Frankfurt am Main Court of Appeal, 6th Sect., Az. 6 U 211/20):
It is 2020, the pandemic begins, and in Germany as everywhere else there are periods of business closure. With great difficulty one manages to notify the other party of the appeal. In the meantime, it turns out that the company has gone into self-liquidation, but a judgment like the one at first instance cannot become case law, so with all the conviction we have employed since May 2018 when this story began, we went ahead and demanded that it be continued even in default and that a hearing be set. The owners of the pizzeria decided not to enter an appearance.
On 07.07.2022, the first (and only) hearing of the case was held before the 6th section of the Frankfurt am Main Court of Appeal. The court first analysed the events and arguments of the case in detail.
Recalling the BGH judgment of 28.9.2011 number I ZR 188/09, in which the plaintiff invoked the infringement of rights to a name that had become known thanks to his ancestors, it confirmed the active legitimacy of Prof. Maria Falcone, also emphasising that even the abstract danger of confusion was sufficient to assert protection.
In the minutes of the case he confirmed that "in any case the first plaintiff (n.d.t. Prof. Maria Falcone) has a claim under the right to a name pursuant to §§ 12, 1004 of the German Civil Code, as well as under the right to post-mortem personality rights pursuant to §§ 823 (1), 1004 of the German Civil Code, in the sense of the right to claim compensation. The Senate is of the opinion that the violation of Judge Falcone's right to post-mortem personality by the defendant's questionable business acts is fundamentally to be approved. In the opinion of the Senate, the business acts complained of clearly constitute a violation of Judge Falcone's right of personality because they counteract his life and work”.
On the afternoon of the same day, the Court issued the default judgment of conviction in which it ordered the pizzeria to cease and desist from using the trade name 'Falcone' alone or as part of a trade name, in particular as the name of the pizzeria 'Falcone e Borsellino', on signs, menus, advertising material, on the internet, on Facebook and on Instagram in connection with its business activity, as well as to cease using the name 'Falcone' in connection with its business activity, in particular alone or as part of a website address. Penalty in the event of a repeat offence is a fine of up to EUR 250,000 set by the court for each case of infringement and, if it cannot be collected, up to six months imprisonment.
The first decision of the Regional Court had caused a great stir in Italy. It was seen as a disparagement of Giovanni Falcone's life's work by a German court, and even the Italian embassy had to deal with the case. Fortunately, the Higher Regional Court rectified this well-founded suspicion.