An italian way to disgorgement of profits?

One locus classicus of comparative analysis, with regard to different approaches to the problem of quantum of damages, is the consistent gap between remedial solutions available in the Italian legal context and those adopted in common law. In the Italian judicial system, as in the majority of civil law systems, the concept of compensation is prevalent, to the exclusion of any function of punishment or sanction; whereas a salient feature of the common law is the principle that no-one should be able to benefit or profit from illicit conduct, so that the use of remedial instruments which include a considerable element of punishment and/or sanction has become over time indispensable. However, setting out a framework which can adapt to unforeseen exigencies, while remaining deeply rooted in the fundamental quest for ‘actual’ justice, calls for a mode of thinking ‘outside the square’, if necessary beyond the usual models. Therefore, although in Italy the area of the law concerned with the workability of a legal instrument capable of giving the victim the possibility to recover the profit accrued by the perpetrator of the illicit act must be compatible with the ‘macro-area’ of compensation for damages, it must be acknowledged that the role of forerunner has been assumed by industrial law that has demonstrated a propensity for investigating and developing innovative legal solutions. For these reasons our field of enquiry will necessarily focus on aspects related to the relationship between the infringement of IPRs and compensatory damages.