concorrenza sleale



The Court partially agreed with the requests made by SIAE in the ante causam petition against the companies Nation 2 S.r.l., Seatwave Lts, Ticketbis Sociedad Limitada and Viagogo AG in relation to the unlawful on line re-sale of Coldplay’s tickets for the concerts scheduled on July 3 and 4, 2017 at San Siro Stadium in Milan.


In October 2016 SIAE filed, before the Court of Rome, an ante causam petition to obtain i) the seizure of the website identified with the domain names, and (including the IP addresses associated with said domain names, present and future), and/or the seizure of the tickets, of the Italian concerts of Coldplay, offered on sale on these web sites for a higher amount than the offer price, as well as ii) preventive measures, against the companies Live Nation 2 S.r.l., Seatwave Lts, Ticketbis Sociedad Limitada e Viagogo AG, consisting in the prohibition to further commercialize, directly or through third parties, the above mentioned tickets – setting a penalty in case of non-compliance with the order.

The action of SIAE, supported by the intervention in the proceedings of Federconsumatori, was aimed at contrasting the “secondary ticketing” phenomenon, a commercial trend according to which the tickets sold by the reseller authorized by the organizers of the events (so called primary re-seller), once bought through the “official channel”, are sold again on the internet on e-commerce web sites for a price that is consistently superior if compared to the price officially proposed on the primary market.

The Court of Rome has declared that the individual and occasional reselling of concert tickets on the secondary market cannot be considered unlawful according to Italian Copyright Law – not even if the price made is consistently superior than the original one or even if the sale is made through on line web sites which are able to make the transaction easier – because of the lack of rules which recognize in favor of the artists the right to obtain an ulterior reward for any successive resale of tickets which entitles spectators to participate to their events. Equally, the role of hosting provider played by the companies involved should have been considered lawful in itself, as it was executed respecting both national and European rules.

That being said, the Court stated that the secondary ticketing activities executed by the companies involved in the proceedings should have been considered unlawful since, in the case in question, the re-sale of the tickets was made professionally and was organized by the same companies which set up the event and/or that managed the e-commerce web sites, implementing lucrative operations placed between primary resellers and end users, consisting in a substantial avoidance of the disposition made in order to protect the economic rights of the authors, causing an economic prejudice both to the authors represented by SIAE and to the end users.

In light of the above, the Court ruled partially granting the requests made by SIAE, issuing the sole preventive measures consisting in the prohibition to further commercialize, directly or indirectly, on the secondary market the Coldplay’s concert tickets, bought on on line and off line primary market, excluding instead the possibility to  grant the seizure as requested. Since the companies involved own web sites as hosting providers, the seizure of the tickets has been declared impossible because the inability to distinguish which tickets were sold through these web sites between end users (and so licitly) or by the owners of the said web sites.



The Court of Milan, with order dated 22 April 2016, granted the precautionary protective measures requested by the Italian branch of the Ports Group, a company that operates worldwide in the field of clothing and fashion accessories. The measures were directed against the Spanish company Fashion Retail S.A. as well as the Italian corporation Stradivarius Italia S.r.l. for marketing in their stores and on the website a particular shoe characterized by a “bow/knot on the upper shoe” identical to the one created and marketed by Ports Italy.


SCARPA 2           SCARPA1

The applicant had based this precautionary action on certain acts of unfair competition allegedly carried out by the counterparties – that is, slavish imitation and misappropriation of attributes – requesting the opposing party to be inhibited from the continuation of the illegal conducts. Specifically, Ports Italy claimed that its shoes were characterized by the particular shape of a “bow/knot on the upper shoe”, so peculiar to allow the average consumer to connect such a shape (exclusively) to the applicant’s production. Moreover, given the reputation acquired on the market by the shoes with “bow/knot on the upper” after only 4 months from their entry into the market, the defendants would have slavishly imitated the characterizing form just in order to exploit the reputation of the applicant appropriating the advantages related to its production.

The Court held that the peculiar form of the shoes with a “bow/knot on the upper” was indeed a characterizing element of the applicant’s production, considering it to have that unique quality established by Article 2598, no. 1, of the Civil Code. Moreover, given the substantial identity between the products of the two companies, the confusing effect that the rule in question aims to avoid would have certainly taken place. However, according to the Court, the misappropriation of attributes under Article 2598, no. 2, of the Civil Code did not occur, since the reproduction of the most peculiar elements of the other party’s products would lead the consumer into error as to the origin of the goods, and hence would not be intended to take possession of the strengths of others, as required by the rule at issue.