The evolution of technology and new communication channels contributed to confusing the approach to trademark infringement and unfair or unlawful competition actions, and to diminish the efficacy of more traditional forms of intellectual property protection such as the registration of trademarks, patents and copyright. This tendency stems from the very nature of trademarks and patents, which becomes more and more fluid, immaterial, virtual, digital. Today, sensible information and commercial know-how are subject to unforeseen forms of electronic data theft, with all the risks connected to misappropriation. Hence why businesses are urged to redefine their models and make sure their commercial information receives lighter, faster, more effective protection and defence from unfair or illicit competition, given how such competition can easily result in customers diversion, damage to the image of the company and ultimately, in loss of market shares.
Protecting commercial know-how and sensible information
The Italian code for industrial property protects commercial know-how, research results, production, commercialization and marketing techniques through the instrument of the non-disclosure agreement (NDA), and forbids the use of such information by employees who obtained it illicitly, or retained it because of their position in the company. The code for industrial property has also extended the sanctions to those companies who hire former employees of a competitor with the purpose of causing damage by perpetrating actions of illicit or unfair competition. If actually put in place, such infractions are subject to judicial review.
Moreover, the orientation towards new forms of protection of enterprises’ commercial secrets has come under the spotlight of the European legislator with the Directive (EU) 2016/943, which the Italian judicial system has applied by offering protection to commercial information, technical-industrial experience, trade information and their need of commercial secrecy. In addition to that, the Italian Decree of enforcement 63/2018 has extended the prohibition to acquire, reveal or misuse such information, expressly introducing a number of culpable conducts – in addition to the wilful misconducts – and reinforcing the protection from a criminal stand through the introduction of proportionate and dissuasive sanctions in case of illicit conducts of trademark infringement, misuse of confidential information, sensible data or products – such as a software, or a chef’s cooking recipe.
Protection and exclusive use of a cooking recipe
Despite it sounding like a paradox, the case has been presented by the patent for steam cooked pizza. Neither pizza nor steam cooking are anything new or exclusive of a single enterprise, chef, or company. What has been protected by copyright is the process of steam-cooking pizza, as developed in 10 years of research and proceedings covered by secrecy and confidential information. On the other hand, the way to follow in order to protect a recipe developed by a celebrity chef is copyright, just like figurative artwork such as a sculpture, architecture, design – which present artistic value and creativity. The purpose is obviously being able to benefit from the royalties connected to one’s own work and creativity, in case someone wanted to use the same recipe. The same principle is applicable to certain intangible digital products, which are very easily subject to misappropriation.
Confidential information to protect
The protection of information and knowledge involves enterprises which can be relatively small, but able to operate on an international market. It is crucial for such innovative companies to focus appropriately on how to protect their information, which represents a competitive advantage, such as secret recipes, productive processes, presentation forms, as well as relevant confidential information regarding clients and suppliers lists – assets which are difficult to defend through the traditional copyright or patent protection.
New forms of protection for innovative enterprises
Innovative start-ups are the enterprises that mostly need to implement commercial know-how defence. This must be done through the integration of a custom-made protection system within the business organisation, which guarantees identification, labeling and recognition of the information by third parties. The other essential form of defence is appropriate security measures to protect digital information – like cryptographic systems such as blockchain – in order to ensure projection against theft and misappropriation.