Unfair competition between entrepreneurs in the territory and online
In the previous article (click here to read it), it was stated that, for unfair competition to exist, it is necessary for two enterprises to be in (effective) competition with each other, i.e. to offer goods or services on the same market that satisfy identical or similar needs.
This is easily established when two companies offer identical goods/services and operate in the same territory.
But how can this be established? Especially in the modern era of e-commerce, which is increasingly vital in the age of globalisation.
The clarification of the Court of Cassation
The Court of Cassation, in its recent Order n. 626 of 10.01.2025, clarified that the prerequisite for the unlawful competition is the commonality of customers: this is not given by the subjective identity of the purchasers of the products, but by the totality of consumers who feel the same market need and, therefore, turn to all products (the same or similar or substitute to those placed on the market) that are able to satisfy that need.
It follows that the absence of a commonality of customers prevents any competition and, therefore, any abuse of the relative right (in accordance with, also, Cass. Civ. 14 February 2000, n. 1617).
For this reason – according to the Court, which follows the prevailing orientation (for all: Civil Cassation 22 October 2014, no. 22332; Civil Cassation 22 July 2009, no. 17144; Civil Cassation 14 February 2000, no. 1617) – if there is a commonality of customers, there is a competitive relationship even between those entrepreneurs who use different distribution channels (in this case: the offer in points of sale located throughout the territory and the online offer) to market the same products.
It follows from this maxim that the mode of marketing of the product is of no decisive importance for the existence of a competitive relationship.
In fact, the identity of the sales system adopted by two entrepreneurs targeting non-identical customer groups, not even potentially, does not give rise to the existence of a competitive relationship; on the contrary, such a relationship is to be found where the same product, through different distribution channels, is addressed to those who perceive the same market need and may therefore be interested in obtaining it.
The case examined by the Court
The Court was called upon to rule on the appeal filed by DML s.p.a. (a shareholder of GRE s.p.a., a company that coordinates various companies and holds the exclusive licence to use the Trony trade mark), which sought a declaration that E. DLE s.p.a., F.S.P. s.r.l., F.S. s.p.a. and C.S. s.r.l. had committed acts of unfair competition to its detriment.
In particular, according to DML s.p.a., E. DLE had transmitted to the other affiliated companies, confidential commercial information, acquired within GRE s.p.a., on the prices to be applied on the products promoted by Trony, so that the affiliated companies would put on sale online the same articles, at conditions lower than the promotional conditions approved by GRE.
In the grounds of the cited order, the Court of Cassation clarified that the customers of the electronic products market must be considered as a whole, in a potential perspective, taking into account the “physiological and foreseeable market out come” of the activity carried out, regardless of whether the purchase of the same is carried out in points of sale spread throughout the territory or through an online circuit.
Indeed, there is a competitive relationship even between operators offering their products through distinct marketing methods.
