PRINCIPALES ASPECTOS JURÍDICOS CONTROVERTIDOS DE LA CAPTACIÓN DESLEAL DE CLIENTES.

Abstract

One recurring type of case our courts have to face is that of unfair practices to steal customers. Because of business owners' anxiety to avoid losing clients, or at least their anxiety to receive compensation, together with the legal fuzziness surrounding the event, suits on these grounds are proliferating exponentially. As hinted, the main problem in such circumstances is specifying the event that legislation holds to be «unfair». In this sense, the main criterion for determining unfairness according to case law and leading doctrine is the circumstance of the customers' having been obtained by means of deceit, some discrediting of the competitor or some use of the competitor's resources or infrastructure, such as the competitor's customer lists. That is to say, legislation protects only economic efficiency, not a company's exclusive relationship with its customers, and is unattached to any ethical or deontological principles that may prove applicable. The other especially controversial issue is for what items damages may be sought. Following our courts and authors, it may be concluded that compensation may include: (i) indirect damage, comprising the expenses the injured party has had to bear; (ii) loss of income, made up of the profits earned by the unfair competitor through the corresponding rendering of services or supply; (iii) mental anguish; (iv) the expenses of publishing the ruling. It is important in this respect to emphasize that the granting of loss of income is usually restrictive. Therefore, the success of this type of suit depends on correct identification and sufficient proof of the unfair act.