Unfair competition

 

Competition is the foundation of the market but for competition to be lawful it is first of all essential that competition between companies takes place according to the principles of professional correctness.

Illicit conduct, defined as "unfair competition", manifests itself through acts aimed at harming the interests of other competing companies. Unfair competition develops through the use of methods contrary to commercial ethics and finds the basis of its prohibition in the need to impose rules of correctness and loyalty on companies, so that none of them benefit at the expense of the others in the dissemination and in the placement of its products.

The necessary requirements for setting up unfair competition are:

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1) the injured party must be an entrepreneur;

2) the damaged entrepreneur must operate in competition with the unfair entrepreneur, even if they do not occupy the same sector.

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How does unfair competition manifest itself?

In order to configure the case of unfair competition, it is necessary to verify that the damaging entrepreneur has violated the precept of art. 2598 of the Civil Code, which provides that "anyone who:

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- uses names or distinctive signs capable of producing confusion with the names or distinctive signs legitimately used by others, or slavishly imitates the products of a competitor, or performs by any other means suitable acts to create confusion with the products and with the activity of a competitor;

- disseminates news and appreciations on the products and activities of a competitor, capable of causing discredit, or appropriates the merits of a competitor's products or business;

- directly or indirectly makes use of any other means that do not comply with the principles of professional correctness and are capable of damaging the company of others ".

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The following cases are also configured as unfair competition:

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1) Acts of denigration: these consist in the dissemination of news and appreciations on the products and activities of a competitor capable of determining his discredit or in the appropriation of the merits of products marketed by competitors or the merits of the competing companies themselves.

A clear example is the so-called "hyperbolic advertising" with which a subject tends to accredit, through expressions such as "the most", "the true", "the only", "the only", the idea that his own product is the only one to possess certain (non-objective) qualities which, on the other hand, are implicitly denied to other competitors.

2) Dumping: this is the systematic sale below cost of one's products aimed at eliminating competing entrepreneurs.

3) Cancellation of employees: this is the initiative by which an entrepreneur tends to ensure the work services (normally of a qualified professional nature) of one or more employees of a competing company.

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How to defend against unfair competition?

It is possible to defend oneself by giving an investigative assignment to the Luca D'Agostini Investigazioni agency, which at the end of the investigations will release a technical investigative report drawn up on its own headed paper and accompanied by all the evidence that emerged during the investigation. Thus it will be possible to use the technical investigative report of the Luca D'Agostini Investigazioni agency by filing it together with the appeal before the competent Court for the territory: art. 2599 of the Civil Code provides that "The sentence that ascertains acts of unfair competition inhibits their continuation and gives the appropriate measures so that their effects are eliminated".

Parallel to the judicial remedies, there are others of an extra-judicial type where it is always possible to file the technical investigative report of the Luca D'Agostini Investigazioni agency: this is the complaint to the Guarantor Authority for Competition and the Market which, in the event of found infringement following an investigation, will summon the parties and seek an out-of-court solution.

In case of ascertainment of unfair acts, the aforementioned jurisdictions may apply the following sanctions: the interruption of the "unfair" acts, the elimination of the effects of the unfair acts carried out and the compensation for damages caused to competitors.

With regard to the latter point, it should be noted that art. 2600 of the Civil Code establishes that "If the acts of unfair competition are committed with intent or negligence, the author is required to pay damages".