Unfair competition, assessment of unfair competition, use of distinctive signs, servile imitation, transfer of employees, Civil Cassation (ord.), Sect. I, 15/11/2017, n. 27144
Essential lines of the arguments of the Supreme Court of Cassation
Regarding the criterion for investigating the existence of unfair competition, this Court, in a recent but never denied judgment, stated that the judgment on the existence of unfair competition must not be analytical and limited to each individual act, but must extend, in one unitary and overall vision, the overall behavior of the agent and the harmful repercussions that have occurred or that can occur in the industrial and commercial sphere of others (Court of Cassation Section 1, Judgment No. 2130 of 29/07/1963).
It can therefore certainly agree with the applicant on the fact that the correct criterion of investigation is that of the overall assessment of the episodes of unfair competition reported, even if they have their autonomy in the discipline of the three numbers of the art. 2598 cod. civ.
However, this criterion hermeneutico operates if the judge sees the existence of elements of disloyalty in the episodes of competition reported, so that the statement of responsibility must be deduced from the sum of elements established in their legal objectivity and that, examined as a whole, reach the threshold of illicit provision of art. 2598 cod. civ.
With regard to the use of distinctive signs, the Court has argued that the ruling stated that the fact that the defendant assumed the company name … .. was lacking in relevance, given that already before that event the … .. had changed the its company name in … …, thereby excluding any confusion.
This argument conforms to the jurisprudence of this Court (Section 1, Judgment No. 6 of 03/01/1991).
With regard to servile imitation, the Court has argued that the ruling has by no means failed to take into account the conclusions of the ctu, as argued in the complaint in question, but on the contrary stated that the conclusions of the aforementioned expert and the testimonies assumed emerged that the products of the recurring company were not protected by any patent and used a technology known for a decade (see page 17-18), so much so as to be the technological heritage of other competing companies (mentioned by name). This ratio decidendi is not opposed in the complaint in question, which argues the existence in evidence of the total overlap of products and from this circumstance deduces the servile imitation, when instead the argument used in the ruling to exclude the relevance of the confusion is precisely the vulgarization of the production process of the product (Box Section 1, Judgment No. 1226 of 01/04/1977).
Nor is the alleged total omission established by the sentence appealed to the case …. which, on the contrary, has been examined and considered irrelevant for the purposes of demonstrating the alleged actor (see page 10-11).
With regard to the transfer of employees, the Court has argued that, contrary to what the complaint complained about, the judgment under appeal did not in any way exhaustively and contradictoryly justify the exclusion of the transfer of employees from the plaintiff company to the defendant.
On the contrary, he excluded that the transfer of the employees from the plaintiff to the defendant took place on the initiative of today’s counter-current, stating that the witness revealed the spontaneity of the transfer by workers at market conditions.
This assessment, reserved to the trial judge as to the examination of the preliminary findings, appears to conform to the jurisprudence of this Court which has ruled that in the assessment of the animus nocendi the conviction activity carried out by the alleged reverser to induce the personnel of the company competing with the transfer (Court of Cassation Section 1, Judgment No. 20228 of 04/09/2013).
Source Supreme Court of Cassation
