The issue was addressed by the Court of Cassation in ruling no. 626 of 10 January 2025.
The heart of the dispute concerned alleged unfair competition practices related to the use of online sales channels by some members of the network of an electronics brand, potentially to the detriment of another member operating through physical stores. The Court of Genoa had initially accepted the plaintiff's claims, finding unfair competition and ordering an injunction, although rejecting the claim for damages. However, the Court of Appeal of Genoa later overturned this decision, rejecting all the claims. Hence the appeal to the Supreme Court.
The Court of Cassation considered the Court of Appeal's statement that there was no competitive relationship between the parties because they operated in different markets (physical vs. online) to be incorrect.
The Supreme Court has clarified that an essential prerequisite for configuring unfair competition is the existence of a common clientele. However, this is not defined by the precise identity of the buyers, but by the set of consumers who have the same market need and who turn to all products capable of satisfying it, regardless of whether they are identical, similar or substitutes.
The Court noted that the method of marketing the product (physical store vs. online) is not the decisive factor in determining the existence of a competitive relationship. A competitive relationship exists when the same product, through different distribution channels, is intended to satisfy the needs of the same market need, or the same audience of consumers interested in purchasing.
In particular, the Court stated that the clientele of the electronic products market must be considered as a unit, regardless of whether the purchase takes place in points of sale spread across the territory or through an online circuit: and this means that a competitive relationship between operators who convey their offer through these distinct ways of marketing products in question.
The Court found that denying a competitive relationship based solely on the diversity of the Product distribution channels it means ignoring the natural dynamism of individual entrepreneurial activities and the natural osmosis existing between the forms through which the exchange of products is implemented (the traditional ones, on the one hand, and the more evolved ones, of increasing diffusion, on the other).
Furthermore, the Court of Cassation also disagreed with the Court of Appeal on the issue of proof of the drop in turnover, specifying that, pursuant to art. 2598 of the Civil Code, unfair competition does not necessarily require actual damage: the potential harm, represented by the ability of the prohibited conduct to cause damage, is sufficient.
In conclusion, the Court of Cassation has established the principle according to which companies that sell the same products through different distribution channels (physical and online) are in a competitive relationship if they address the same consumer base with the same market needs, and unfair competition may arise between them.
Content by Attorney Luca Tiberi.
