Unfair Competition and Counterfeiting

Our wide experience in unfair competition and counterfeiting allows us to make clear, accurate and realistic assessments (also in economic terms and in terms of the real opportunity of legal action). Our special services dedicated to this practice area are:

• first appointment (preliminary assessment);
• legal advice on business interference;
• legal warning or first legal response letter;
• defence in court;
• Customs Agency reporting;
• reporting to web platforms.

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What is unfair competition?

If you are accused of committing acts of unfair competition or counterfeiting, you may receive a legal warning. Conversely, you may be a victim of such acts. Our experience in this area allows us to always make clear, accurate and realistic assessments ( also in economic terms and considering the real opportunity of legal action). 

The regulation governing unfair competition provides penalties for a wide range of commercial conducts in conflict with professional fairness. It does not only concern imitation of competitors’ products and/or ideas but also theft of information (secrets and know-how), diversion of employees, commercial denigration, boycotts, etc.

Unfair competition is governed by Article 2598 of the Italian Civil Code but also has an international basis in the Paris Convention signed on 20 March 1883. The Convention is one of the first intellectual property treaties and, with 178 member countries, is one of the most widely adopted treaties worldwide. 

What is the difference between unfair competition and counterfeiting? Well, only when unfair competition also involves the infringement of patents, trademarks or other copyrights can one properly speak of counterfeiting.

What are the main types of unfair competition?

There are several recurring types of unfair competition. Through acts of unfair competition an entrepreneur takes unfair advantage, saving costs, exploiting the reputation of a competitor or damaging it. A list of the most frequent cases of unfair competition follows:

• imitation of names, trademarks, product designs, websites, catalogues (i.e. acts likely to create confusion and mislead customers);
• advertising by reference (i.e. appropriation of advantages or linking to the reputation of others)
• denigration (i.e. false and disparaging communications about the competitor).

As they violate professional fairness and are potentially detrimental, the Courts have also deemed the following behaviours unlawful:

• the continuous takeover of the competitor’s business ideas/initiatives (so-called parasitic competition)
• the systematic diversion of the competitor’s employees (so-called diversion of employees);
• pressure on suppliers and other operators aimed at forcing an entrepreneur out of the market (so-called boycott);
• the theft of confidential information (e.g. know-how, software codes, customer or supplier lists);
• employee’s solicitation (often in connection with the theft of secrets);
• undue advantage deriving from the violation of laws or regulations, e.g. false Made in Italy, illegitimate CE marking (so-called violation of advertising regulations).

This list is for illustrative purposes only.

How to act in case of unfair competition or counterfeiting?

Most unfair competition cases are dealt with by means of a legal warning. In fact, with the assistance of a lawyer – by means of a legal warning – it is possible to invite the offender to pay damages and immediately cease the harmful conduct. In other cases, however, it may be more profitable to act by surprise with urgent judicial measures (also to prevent the infringer from concealing the evidence of his guilt).

In the case of blatant online infringements involving trademarks, patents, design, copyright, etc., we report the infringement directly to the platform offering the counterfeit goods for sale (e.g. Amazon, Alibaba, etc.).

The Customs Agency also provides for the possibility of making a specific report, the so-called “application for Customs action“, aimed at having the suspected goods seized. Please see, in more detail, the special services at the bottom of the page.

When unfair competition becomes an offence?

Pursuant to Article 513 bis of the Criminal Code “Anyone who, in the practice of a commercial, industrial or otherwise productive activity, engages in acts of competition with violence or threats shall be punished by imprisonment for a period ranging from two to six years“.

Besides the civil offence outlined in Article 2598 of the Italian Civil Code, a real offence is committed when violence or threats are used to prevent the competitor from acting freely on the market or from self-determination. Just think of the intimidatory acts typical of places where organised crime is rife.