The IP Section of the Court of Milan, by judgment issued on September 17, 2014, ruled on a “look alike” case, whereby the company San Carlo Food Group S.p.A. claimed the imitation of the graphic elements of its package of chips (hereby reproduced) by the competitor company Amica Chips S.p.a.

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In particular, San Carlo, first by preliminary injunction and thereafter through an ordinary proceedings, requested the Court to assess the conduct of unfair competition and parasitic behaviour carried out by Amica Chips, other than the counterfeiting of the trademark rights owned by the same San Carlo.

With judgment here in comment, the Court of Milan admitted San Carlo’s argument relating to the distinctive character of the packet of chips in reason of its minimalist graphics. However, the Court ruled out a risk of confusion for the consumer, rejecting the claim of counterfeiting and of misleading unfair competition.

The Court of Milan stated, however, that Amica Chips was to be held responsible for parasitic unfair competition, due to the fact that it adopted a package that, in any case - although not able to confuse the consumer on the commercial origin of the product – took advantage of the commercial strategy of the competitor San Carlo. This phenomenon – consisting on imitation of the exterior elements of a packaging, without an actual risk of confusion by the final user – is called look alike.

Amica Chips was thus inhibited from continuing to use the package in dispute.

This decision confirms the attention of Italian Courts against parasitic behaviors between competitors. It derives that undertakings shall have necessarily to make a thorough assessment of their packaging prior to entering in the market.