7 November 2022

Unfair Business Practices – unharmonized -> not unitary body of regulations

This made it a little bit complex to organize

International agreements about unfair business practices – are almost more general and less
specific – indeed they do not have to apply, meanwhile national laws need

• Difference from tort law: it is not necessary for the contested conduct to create an
actual harm to the counterparty’s business.
• It is sufficient for it to be potentially suitable to create harm.
E.g.: attempt to “steal” employees before the actor actually managed to obtain a relevant
part of the contested market.
• The potential harm of the attempt shall be evaluated ex ante: it is not relevant
whether the operator succeeded or not in its goal.

Reason behind: prevention, but not only that

- Identify the harm – mainly quantifying the harm -> tort law

- It is easier to prevents things to happened instead of quantifying them after

Casuistic: case by case

All these behaviors take place within entrepreneurs

- Unfair business ≠ unfair commercial

Art 2598 c 1
Unlawful to use name or identifying characteristics likely to be confused with names or
logos used legitimately by others, slavishly imitates the products

- Same structure. 2 specific behaviors and 1 more general – for cases we cannot
exactly frame

Art 2598 c 1 overlaps Art 20 IPC (intellectual property code)

- Difference in registration

Art 2598 c 1 – when and how we decided that something is going to be confused?
In order to do that EU developed a notion: the average consumers
- Reasonably well-informed and circumspect
 Average consumer is not an expert: We cannot protect all the consumers
 have at least some understanding
- always qualitative analysis

Art 2598
- what are identifying characteristics? How we identify them?
For example: domain name (tech innovations)
Meta-tag – SEO ranking
Unlawful use of linking
- notification that you are exiting from insta when you click on a commercial – need to
avoid confusion

slavishly imitate the product of a competitor?

- slavishly imitation -> context is extremely relevant
 imitation must refer to something that can be seen and perceived from the
consumer

Art 2598 c2
Provision unlawful behavior in communicating w/ clients

When you claim that a new about our competitor is a “FALSE NEW” (since it is not the true)
In order to establish if – purpose analysis
 general interest
 not general interest -> denigration

In general imitation (even if in a good way) is

When you claim that you have quality and credits that others have and not you have
2 elements: I have this quality + implicit negation (exclude the other)

Unfair Business Practices against a specific identified competitor

- enticement of employees – try to steal competitors’ employees
 only to harm the competitor