Italy: An Intellectual Property Overview

Comparative Advertising and Unfair Competition: Remedies and Actions in Italy

The importance of advertising and the evolution of the sector

Nowadays advertising plays a central role in steering consumer choices and positioning new businesses on the market. A sector that once revolved around relatively standard TV commercials has progressively evolved into a highly fragmented ecosystem, dominated by digital platforms and social networks. Short video clips – often no longer than a story or reel – and impactful images are now designed to capture the fleeting attention of increasingly solitary social media users scrolling through their feeds.

In this context, companies compete not only on price and quality, but also on visibility and narrative. The attempt to win over consumers and promote a company’s products over those of competitors has led to an increasing resort to highly aggressive advertising messages. These communications can be capable of distorting the rules of normal competition between competitors, particularly where the message does not simply highlight the advantages of one’s own product, but explicitly or implicitly undermines a competitor’s offering or reputation.

Misleading and comparative advertising – different levels of protection in Italy

The Italian legal system grants strong protection to the rules of competition: on the one hand, advertising is recognised as playing a central role in the competitive game; on the other, stringent rules apply whenever the message distorts competition or unfairly affects competitors’ reputations.

In Italy, this protection operates on two main levels.

First, there is a special regime governing misleading and comparative advertising, which implements European standards and sets out the conditions for the lawfulness of messages. Said rules identify when an advertising claim is misleading, when a comparison between products is allowed and under what circumstances comparative advertising crosses the line into illegality. Secondly, Article 2598 of the Italian Civil Code – the general clause on unfair competition – plays a central role: all conduct, including comparative advertising, that conflicts with professional fairness and is liable to harm a competitor’s business are deemed illicit due to their unfairness. The coexistence of these two levels of protection creates a notably robust framework: a misleading or unfair advertising message may be unlawful in itself under the special legislation and, at the same time, constitute an act of unfair competition giving rise to claims for damages before the civil courts.

In parallel, there is a further layer of protection expressly reserved to consumers. Where they consider advertising to be misleading under the Consumer Code (Legislative Decree No. 206 of 6 September 2005), consumers may lodge complaints with the Italian Competition Authority. Consumers are, however, barred – unlike their representative associations – from bringing court actions for violation of the rules on unfair competition, as they are not in a competitive relationship with the company. This dual-channel system – administrative enforcement for consumer protection and civil litigation for competitor protection – is a key feature of the Italian system.

The delicate nature of comparative advertising

Both EU and national legislation allow comparative advertising. It is considered a potentially virtuous information tool: comparing products and services that, when done properly, can help market operators to assess competing offers more effectively and foster competition based on objective parameters. Comparative advertising is seen as a means of making markets more transparent. However, since it directly involves competitors, comparative advertising carries a significant risk that the comparison may degenerate into denigration or parasitic exploitation of another competitor’s reputation. The boundary between a legitimate comparison and an unlawful attack on a competitor can be thin in practice, especially when communication is compressed into a few seconds or a single image. In this harmonised context, the assessment of whether a specific message is unlawful – and whether it amounts to unfair competition – shall be carried out at national level by each member state. Italian courts, therefore, play a crucial role in applying these standards to concrete cases, often involving highly creative and fast‑moving marketing strategies. The reaction is usually as fast as the marketing strategies are.

Unfair competition rules and their interaction with comparative advertising

Article 2598, No. 2, of the Civil Code foresees that disparaging acts carried out against a competitor fall within the definition of unfair competition practices, including disparaging comparative advertising, focusing on the resulting discredit in the eyes of customers rather than on the mere use of comparison as such. What matters is not that a company dares to compare itself with another, but whether the way this comparison is made unfairly tarnishes the competitor’s reputation. The general clause of professional fairness contained in Article 2598, No. 3, of the Civil Code also provides another general protection against unfair acts (in general) that might harm a competitor’s reputation.

Among the special provisions, Legislative Decree No. 145 of 2 August 2007 governs misleading comparative advertising in business‑to‑business relations, implementing Directive 2006/114/EC. The Directive adopts a broad notion of comparative advertising, covering any advertising that identifies, explicitly or implicitly, a competitor or the goods or services offered by that competitor. The Decree emphasises that identification may also occur by allusion, through graphic, chromatic or textual references that render the other party’s product or distinctive sign recognisable, even if not mentioned by name. Directive 2006/114/EC and Legislative Decree No. 145/2007 construct lawful comparative advertising as the outcome of compliance with a series of cumulative conditions. The comparison must concern goods or services that satisfy the same needs or serve the same purpose, so that the comparison is genuinely meaningful rather than artificial. Moreover, it must relate to essential, relevant, representative and verifiable features of the products – such as price, quality, performance, durability and efficiency – avoiding reliance on marginal or irrelevant aspects that are artificially magnified.

Central to this framework is the requirement that comparative claims be truthful and verifiable. The use of obsolete, partial or non‑verifiable data shifts the communication into the realm of deception, with consequences under both the regime on misleading advertising and the rules on unfair competition. More recently, especially on social media, it has become increasingly common to see short and/or temporary advertising messages in which the competitor’s product is explicitly disparaged and labelled as “fake”, “ineffective” or “dangerous to health”, without any technical, regulatory or other substantiation. The sole purpose of such messages is to divert consumers – who have now become followers – from one product to another. The immediacy, virality and apparently informative nature of these communications make them particularly problematic, as serious reputational harm can be inflicted in a matter of hours, often before any counter‑message or corrective measure can be effectively deployed.

Remedies and enforcement tools

The Italian system offers competitors a range of tools to react swiftly to unlawful comparative advertising.

To obtain the immediate removal of disparaging messages, the cessation of further acts of unfair competition and the prevention of future breaches, interim relief under the general provisions of Article 700 of the Italian Code of Civil Procedure is available. Where the comparative advertising also makes express reference to a competitor’s industrial property right, the special rule in Article 131 of the Italian Industrial Property Code may be used to obtain tailored precautionary measures. In particularly urgent cases – for example, where the unlawful comparative message is disseminated during trade fairs, exhibitions or events of limited duration and any response after their conclusion would render the measure ineffective – it is possible to obtain an ex parte order, which is immediately enforceable without waiting for the adversarial phase to begin. Such measures may also directly involve intermediaries through which the message is disseminated and/or made accessible to consumers (for example, Instagram, Facebook and TikTok), whose co‑operation is crucial to ensure timely take‑down and to limit the spread of harmful content.

Alongside judicial remedies, Italy has, for many years, had in place the Istituto dell’Autodisciplina Pubblicitaria (IAP), a private body that has adopted a self‑regulatory code to which the main operators in the sector have long since adhered. The IAP monitors advertising messages disseminated through the main channels (radio, television and online) and also acts as an arbiter in advertising disputes between competitors (the so‑called Giurì di Autodisciplina Pubblicitaria). More recently, the IAP has issued specific guidelines (which it calls a “Digital Chart”) for digital content creators and influencers, with a view to regulating advertising in the social‑media environment. This has become an important practical reference for influencer‑marketing campaigns and native advertising.