The Court of Milan (order 03.12.2019) ruled on the proceedings brought by a company owner of a mobile payment app, on the market since 2015, against a company that launched on the market an app with similar purposes in 2018.
The recurrent affirmed that, given the strongly innovative nature of the app and the immediate success with the public, the competitor had replicated exactly their solution through the improper reproduction of the software, of the database, and its user experience.
The resistant had, furthermore, systematically reproduced not only the innovative features ideated over time by the recurrent, but it had also adopted its graphic and linguistic choices on a promotional level.
According to the recurrent company, this happened through the unwarranted subtraction of confidential information in previous negotiations between the parties for the integration of the app of the recurrent.
The Milanese Judge, after reviewing the two apps from a copyright point of view, recalled that:
- a computer program is protected by article 1 (2) of the 91/50 Directive in all its forms of expressions, as in source code or object code, extending the protection even to the preparatory design work for the development of a computer program;
- databases are protected under Copyright Law when the choice and the disposition of the data contained constitute an independent original expression of the creative freedom of its author (Court of Justice, judgment 2.4.2012, cause C-604/10). The data, therefore, must be organized thorugh personal, subjective criteria, not by usual, standard or logic-imposed choices.
- Neither the software’s features nor the programming language constitutes an object of protection.
The Court also noted that:
“the authorial protection of computer programs includes only the form of expression – its formal aspect – and not the content – that is neither the ideas, the principles, the methods, the techniques or the formulas – nor the individuation of the functions designed to resolve the user’s needs. Besides, this last limit marks the distinction between the area of copyright law and the patent protection of technical teachings”.
A technical appraisal performed by a court-appointed consultant substantially showed that both apps have a gradient of creativity: the first one because “it constitutes a combination of functions which were already implemented singularly by different apps but never in the same product all together”, the second one as “it’s the fruit of independent development and not qualifiable as derivative work, as source code”.
Moreover, “the implementation of the same functions – where not deriving from a plagiarism of the source code or its related database – cannot be considered in itself unlawful” when the expressive form of the two software is autonomous and different – for “to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development” (see CJEU, 2nd May 2012, case C-406/10).
Based on these considerations, the Court excluded plagiarism at least in this first precautionary phase, deferring to the value judgement any further discussion on the matter.
On the other hand, the Court assessed that the recurrent committed acts of parasitic unfair competition, pursuant to Article 2598, 3rd subparagraph of the Italian Civil Code, for it had “procured an unlawful competition advantage by offering, almost fully, some features of the competitor platform and some modalities of external presentation, entering quickly in the same market with unfair saving of costs and time needed to develop an independent solution for the profiles above questioned” (see Court of Milan, judgment 28.06.2018).
In conclusion, the Judge partially accepted the precautionary request, inhibiting the resistant from the continuation of the acts of parasitic unfair competition for a time frame of a year.