In order to be protected by the law, the information
possessed by a company must be kept secret.
In order to be open to economic use, and hence worthy of protection,
the information must be:
- technical, technological, financial, marketing or commercial information,
in the form of reports, communications (including internal), studies,
written accounts, lists, data, tables, cards, printouts and anything
else – either on paper or on a magnetic, optical or magnetic-optical
support, provided it constitutes a useful patrimony for the company;
- secret in that it is difficult to access and is sufficiently protected
by whomsoever is the legitimate owner thereof. In order to demonstrate
the adequate protection of the information, so as to make them liable
to protection and able to be used in opposition, good faith or a simple
cavil is not sufficient. On the contrary, a serious defense must be
created, and a correct protection, able to be demonstrated and documented:
for example a serious defense includes specific internal circulars,
safety procedures, confidentiality or secrecy clauses, safety contracts,
Article 2598 No. 3 of the Italian Civil Code
Art. 2598 of the Italian Civil Code is applicable to subjects having
the qualification of entrepreneur, among whom there is a relationship
of economic competition, irrespective of the position that individual
subjects occupy in the chain of production-distribution: what is
relevant is the ability of the subject to misdirect the client to
the detriment of the other subject.
Art. 2598.3 of the Italian Civil Code describes the basis used
to identify unfair competition not laid down in the other paragraphs
of the article. The article specifically says: “anyone ….
who uses directly or indirectly any other means not in conformity
with the principles of professional correctness, and able to damage
another’s company, commits an act of unfair competition”.
This rule protects the company’s secret not in itself, but
only when there are incorrect professional behaviors, that is:
- when secrets are removed by an employee of a competing company,
a consultant or other collaborator;
- when secrets are removed by industrial espionage;
- when secrets are removed by “stealing” an employee;
- when there is competition of an ex-employee towards his former
employer, effected by appropriating and applying secret information
owned by said employer.
Article 98 c.p.i.
In 1996, on March 19, the decree law n° 198 was passed which
brought Italian legislation into line, as far as industrial property
was concerned, with the international TRIPS agreement (Agreement
on Trade-Related Aspects of Intellectual Property Rights, Including
Trade in Counterfeit Goods).The article 98 c.p.i. states:
- Company information and technical-industrial experiences, including commercial, subject to the legitimate control by the holder may all be protected where such information is secret, in the sense that it is not, in its entirety, or in the precise configuration and combination of elements, generally known or easily accessible to experts and operators in the given field;
- has an economic value because it is secret,
- is subject to measures that can reasonably be considered adequate to keep it secret, by persons to whose legitimate control it is subject.
- Data relating to experiments or other secret data may also be protected if processing them would entail a considerable work, and the presentation of which is subordinate to an authorization for marketing chemical, pharmaceutical or agricultural products entailing the use of new chemical substances.