FOCUS

Unfair competition

Relationship of competition

There is a relationship of competition when two or more enterprises in a given period offer (or request) or can offer (or request) goods or services capable of meeting, even as a substitute, the same need or similar or complementary needs within the same scope of the current or immediately potential market. In order to apply the regulations of Art. 2598 and the following articles of the Italian Civil Code, a relationship of competition must exist between the active and passive parties who behave according to the above articles, and a rank of entrepreneur must also exist.

Restrictive agreement

An agreement to restrict competition may be signed by entrepreneurs, but it must be circumscribed territorially and may not last for more than 5 years. If this agreement is to be invoked in the event of disputes, it must be drawn up in a written deed.

Right of supply

Where an enterprise is operating in a monopoly situation, it is obliged not to discriminate between those who require the services which are the object of that enterprise. All those who require the service must be given equal treatment.

Acts of competition

Acts of competition which can be defined as unfair have been divided into three large classes in Art. 2598 of the Italian Civil Code, while the dispositions regarding the protection of distinctive signs and patent rights remain unchanged. The first class covers:

1. the misuse of names and of distinctive signs belonging to others;
2. the slavish imitation of a competitor's products;
3. the performance, with any other mean, of acts liable to create confusion with the products and/or activity of a competitor.

The incorrect use of another Company's distinctive sign presupposes that there is a real competition between the proprietor of the sign imitated and the imitator, and therefore only when the proprietor of the trademark has used it so as to entail the fame of the sign in a territory coinciding with that of the activity of the infringer and for products identical or similar to those of the latter.

The third hypothesis includes: issuing a communiqué of an event carrying the competitor's trademark as the only sponsor, the systematic parking of vehicles carrying advertising of one's own Company in front of the competitor's premises, falsely declaring oneself to be the agent of a competitor, etc.

These hypotheses prohibit behaviour that might affect the consumer's choices and that might induce consumers to impute certain products, activities or services to a different entrepreneur. It must be considered that when the products or services are intended for other Companies it is difficult to prove that such behaviour is such as to create a conviction that there is a different provenance.

In ascertaining whether two products might be confused, it is necessary to consider the average consumer, whose attention is naturally drawn by the overall appearance of the products because he is unable to distinguish in them the lawful similar elements from the elements introduced with bad intent for the purpose of creating confusion. The examination must be founded on objective elements and, as far as servile imitation is concerned, it must really be servile imitation. The examination must also take into account the fact that any obligatory shapes cannot form part of an act of imitation.

No action can be taken in Italy against an imitation of the second degree, that is to say, an imitator of an imitator cannot be prosecuted by the first imitator.

The second class includes:

1. the spreading of news and opinions regarding a competitor's products and business where such news and opinions are likely to create discredit;
2. the appropriation of the qualities of the products or of the enterprise of a competitor.

The third class covers the use of unfair and dishonest means to damage the business of another. The provisions of Italian jurisdiction here are like those already discussed regarding patents for industrial inventions.