This article analyses the principle whereby, in matters of unfair competition, the plaintiff company must provide concrete proof of the damage suffered in order to obtain compensation. It will also examine the most appropriate defensive strategies to adopt in the event of a dispute.
Index:
- The regulation of unfair competition and damages compensation
- The judgment of the Milan Business Court
- Conclusions and protection strategies
The regulation of unfair competition and damages compensation
As is well known, particularly in disputes concerning industrial property and competition, the issue of damages compensation plays a central role, and proof of the actual harm suffered is therefore fundamental.
In this regard, however, there is a significant difference between industrial property rights (patents, trademarks, designs, and trade secrets) and competition law.
For the former, it is possible to request — instead of traditional compensation — the return of the infringer’s profits pursuant to Article 125 of the Italian Industrial Property Code, without the need to prove the infringer’s intent or negligence, nor the causal link with the infringing conduct.
Conversely, damage arising from unfair competition must be proven according to ordinary rules, meaning that concrete and specific evidence is required.
The judgment of the Milan Business Court
These principles were highlighted in a recent judgment of the Business Court of Milan (No. 3459 of 28 April 2025), which rejected the claims brought by a publishing company alleging a series of acts of unfair competition by a competitor.
The claimant argued that the competitor had unlawfully used its registered trademark, “poached” key employees, and diverted a large portion of its clients, thereby obtaining an unfair economic benefit.
With regard to unfair competition, the judges recalled that, even where a competitive relationship and overlapping customer base exist, the claimant must provide concrete proof both of the damage suffered and of the causal link between that damage and the alleged conduct. In the case at hand, the claimant failed to do so: according to the Court, the employees and customers had left not because of any unfair conduct by the competitor, but due to the company’s own decision to wind up its business and its pre-existing financial difficulties.
The judgment represents a further confirmation of the rigorous approach taken by the courts in competition matters, requiring careful documentation and precise demonstration of the harm allegedly suffered.
Conclusions and protection strategies
In conclusion:
- It is essential to gather documentary evidence of the damage and to demonstrate the causal link between the competitor’s conduct and the economic harm suffered;
- It is advisable to assess whether some of the conduct complained of may fall within the violation of industrial property rights or trade secrets, thereby allowing recourse to the broader remedies provided by the Industrial Property Code.