Risarcimento del danno da violazione dei diritti di proprietà intellettuale e retroversione degli utili. Un'analisi comparata

Abstract

The growing interest in intellectual property is closely linked to the role it plays in modern society, characterized by continuous technological and cultural progress and a knowledge-based economy. Therefore, intangible assets have become increasingly important and indispensable for the success of individuals and businesses on the market. In order for this value to be preserved and made profitable, it is necessary that IP rights are effectively protected against counterfeiting and plagiarism. Indeed, thanks to technological innovations and easier access to information, these phenomena have reached worrying proportions, so much so as to test the adequacy of the responses of our legal system. In particular, in the general strategy of IP enforcement, a prominent role is played by infringement damages, intended as a tool by which to allow the owner of the infringed right to obtain fair compensation. However, traditionally, the institution of compensation has not always been up to this task, especially in view of the characteristics of intangible assets and counterfeiting phenomena, as well as due to a compensatory function focused too much on the damage suffered, so as to miss the other direct consequence of the harmful conduct: the profits gained by the infringer. With the intention of making up for this shortcoming, the legislator has been inspired by common law systems, in particular the US system and the remedy of disgorgement of profits, for the introduction of the retroversion of profits, an instrument foreign to our civil tradition that allows the return of profits unlawfully obtained from the violation of IP rights. Consequently, the remedy not only plays a compensatory function, but also a preventive-deterrent and punitive-sanctioning one. This thesis aims to critically analyze how the introduction of the retroversion of profits has led to redefine the concept of damages and, more generally, of civil liability in the field of intellectual property. Moreover, through a comparative analysis of the US and ...