Abstract
When two associations use similar names, the risk is confusion among the public. However, similarity alone is not enough to establish unfair competition. This article analyzes a decision of the Court of Biella (no. 55/2022), which excludes wrongdoing in the absence of actual confusion, and refers to the Italian Supreme Court’s case law (no. 16612/2008) on the notion of “entrepreneur.” Even non-profit associations may therefore be involved, if they operate on the market in an organized manner. The analysis clarifies when confusion between names becomes legally relevant and which behaviors may amount to unfair competition.
When can we speak of unfair competition between associations?
This situation is more common than one might think: two organizations operate in the same sector and in the same territory, and one begins to use a name identical or very similar to that of the other. The risk is immediate: the public may become confused and choose the other operator.
This is not only about customers, but also members. This is precisely what happened in the case decided by the Court of Biella (judgment no. 55/2022): a long-standing sports association saw the emergence, less than a kilometer away, of another organization with a very similar name. According to the claimant, this similarity led members to switch, ultimately causing a drop in memberships and the closure of the gym.
The issue, therefore, is not just the name itself, but the effect it produces. In its ruling, the Court focuses on this point: when similarity is used systematically—in signage, advertising, and communication—it may result in diversion of members, i.e. a form of competition relevant under Article 2598 of the Italian Civil Code.
After several cease-and-desist letters went unanswered, the matter reached the Court. However, before assessing actual confusion, the judge addressed a preliminary issue: can the associations involved be considered competitors?
This is the starting point of the Court’s reasoning, which refers to the criteria of Article 2082 of the Italian Civil Code to determine when an activity, even if non-profit, takes on an entrepreneurial character.
Are we really competitors? How to assess this in practice
Not every improper behavior amounts to unfair competition. The law (Art. 2598 Civil Code) applies only in a specific case: when two entities are in competition on the same market.
In practice, the assessment is more concrete than it might seem. One must ask whether the two organizations offer the same activities, in the same area, and address the same audience. When these elements begin to overlap, the relationship changes: they are no longer simply separate entities, but potential competitors.
If this alignment is missing, unfair competition does not arise – even if the conduct may appear questionable.
This is the first issue to clarify: are we truly competitors?
To answer, it is necessary to understand when an entity can be considered as such. The law uses a specific category: the entrepreneur (Art. 2082 Italian Civil Code). But this is not a formal question—it depends on how the activity is carried out.
In practice, an activity is entrepreneurial when it is stable, organized, market-oriented, and capable of generating sufficient revenue to cover its costs.
This is where a common misunderstanding arises. Many believe that a profit motive is required. This is not the case.
Case law distinguishes between subjective profit (distribution of profits) and objective profit, meaning whether the activity functions like a business, even without distributing profits.
For competition law purposes, this is what matters. If an association operates in an organized way, generates income, and acts on the market, it can be considered a competitor.
The legal form is irrelevant. What matters is how the activity functions in practice.
Can a non-profit association commit unfair competition?
An association can indeed be considered an entrepreneur. Case law states this clearly:
“the notion of entrepreneur […] must be understood in an objective sense, and the entrepreneurial nature must be recognized in any organized economic activity […] while the profit motive remains legally irrelevant, as it concerns the subjective purpose that leads the entrepreneur to carry out the activity” (Italian Supreme Court, judgment no. 16612/2008).
The key point is this: it does not matter whether the entity distributes profits, but how the activity operates.
The Court of Biella (judgment no. 55/2022) applies this principle to a concrete case. Even a non-profit association may qualify as an entrepreneur if it operates with an organization and economic logic similar to that of a business.
In practice, the judge looks at simple elements: whether the activity is stable, organized, offers services on the market, and is supported by revenues that cover costs. When these elements are present, the association behaves like an economic operator.
This clarifies a common misunderstanding. Many associate the concept of entrepreneur with profit-making. In reality, the distinction is between subjective profit (distribution of profits) and objective profit, meaning the ability of the activity to sustain itself economically.
For competition law purposes, the latter is decisive. If the association operates in a financially sustainable way and addresses the market, it may be classified as an entrepreneur, even without a profit motive.
On this basis, the Court concluded that both associations involved fell within the notion of entrepreneur.
The consequence is practical. An association operating in this way may be involved in an unfair competition dispute, both as claimant and as defendant.
Which behaviors constitute unfair competition between associations?
Once it is established that an association may qualify as an entrepreneur, the focus shifts to another issue: is the conduct actually capable of creating confusion?
The Court of Biella addresses precisely this point. The answer cannot be theoretical. Confusion must be assessed in concreto, considering how the activity appears on the market and how it is perceived by users.
In the case examined, there was some similarity in the name. However, this was not considered sufficient. The evidence showed that the other association presented itself with its own name in communications, its own distinctive sign, and a recognizable identity. Overall, the public was able to distinguish between the two entities.
Hence the principle: the assessment does not concern a single element, but the overall identity of the activity.The Court therefore excluded the unlawful conduct and dismissed the claim. But the issue does not end there.
When the requirements of Article 2598 Civil Code are met, protection is not limited to cases of confusion. Other types of conduct may also be relevant if they affect the market. For example, misappropriation of another association’s merits – by presenting oneself as a continuation or evolution of another’s activity – or disparagement through misleading communications addressed to members.
In other cases, the issue concerns people. There may be poaching of members or collaborators, when their transfer is not spontaneous but induced by targeted initiatives aimed at weakening the other organization (see: When does hiring competitors’ employees constitute unlawful conduct? – Canella Camaiora).
There are also less obvious but equally relevant situations. For instance, when an association violates rules of professional fairness, adopting practices that, although not immediately visible, distort competition between operators.
The case examined concerns the risk of confusion, but the underlying principle is broader. If an association operates on the market in an organized way, it may be involved in various forms of unfair competition, not only those related to names or distinctive signs.
The practical consequence is clear. Protection is not automatic. The party bringing the claim must prove that the other’s conduct is concretely capable of diverting users or members and affecting the market.
Reviewed by: Arlo Canella
Publication date: 16 April 2026
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Margherita Manca
Avvocato presso lo Studio Legale Canella Camaiora, iscritta all’Ordine degli Avvocati di Milano, si occupa di diritto industriale.