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 a dispute concerning it, 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 of acts likely to create confusion with the products and/or activity of a competitor.

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 ascertainment examination must be concise and not analytic and must 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.

Nella seconda classe troviamo:

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.