Edition: 183 | Month: March | April | Year: 2023
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Editor note’s
By By Laetitia d’Hanens and Maitê Cecilia Fabbri Moro
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Unfair competition and the limitation of free riding in Brazilian trade mark law: an European perspective (part II)
By Leonardo Machado Pontes
This article explores the eventual need to reassess the“free riding” doctrine in trade mark law. Originally advocated by Yves Saint-Gal in 1956, this doctrine has undergone several important limitations under modern European law since the classical theory of unfair competition created by Paul Roubier, in 1948. Considering the several well-grounded economic and legal critiques in relation to free riding, this article examines possible limits to free riding theorization under Brazilian law.
Keywords: Free riding. Trademarks. Unfair competition. Limits. Comparative Law
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Patents, trade secrets and public health. TRIPS agreement
By Alberto Ribeiro de Almeida
COVID-19 has tested the present legal model of intellectual property rights in relation to public interests, in particular public health. The pandemic made us reconsider the need to adopt an effective system for granting compulsory patent licenses. The legal regime in force for compulsory patent licenses is impaired or even useless when the protection of inventions by patents is combined with trade secrets and know-how. We have considered the viable invalidity of the patent and the duty to disclose trade secrets or know-how.
Keywords: Patents. Trade secrets. Public health. TRIPS Agreement. Flexibilities.
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Analysis of the use of content identification tools in the protection of copyright on the internet
By Paula Beatriz Duarte Celano
This work is dedicated to investigating the use of content identification tools from the perspective of copyright and the impact of this technology on content production. The internet has facilitated the dissemination of materials, which in its turn has made it difficult to control intellectual property infringements by their owners. In response to this, among others, some content identification tools have emerged. However, it is necessary to question the possibility of the abusive exercise of such rights through these means, and how this exercise can inhibit legitimate creative processes. Although these tools play an important role in monitoring the internet, their use must be analyzed in order to identify a potential need to think about the responsibility of the user, and a possible system of counterweights in order to ensure that other collective social interests are not harmed.
Keywords: Copyright. Content Identification Tools. Brazilian Civil Rights Framework for the Internet. Copyright Directive. Access to Culture.
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The use of the arbitration procedure in trademark nullity claims
By Carolina Rodrigues Diniz
The purpose of this article is to discuss the legal viability of a declaration of trademark nullity carried out by arbitration. For that, research was used in bibliographies and in Brazilian legislation, so that it was possible to reflect on the possibility of arbitration in conflicts of trademark nullity. For this, the concept of intellectual property is analyzed, focusing on trademark law, its legal nature, principles and acquisition of protection and ownership. As well as analyzing the arbitration institute, its peculiarities and the observation between objective and subjective arbitration. Next, we approach the core of the work, which is the possibility of declaring or not the nullity of the trademark in arbitral proceedings. In order to arrive at a definition, several doctrinal understandings, favorable and unfavorable positions on the subject are exposed. As a result, reflections were made on possible changes in the legal system, based on spanish law.
Keywords: Intellectual property. Trademark law. Arbitration. Nullity. INPI.
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Commented Jurisprudence
Recurso Especial – nº 1.610.728 – RS
Relatora – Ministra Nancy Andrighi
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Specific analysis on the Judgment of Resp n°1.610.728/RS – Sojicultores x Monsanto
By Charlene de Ávila and Neri Perin
The subject addressed here is possibly one of the most thorny and incipient in Law with regard to research, studies and discussions, mainly due to some loopholes in patent legislation, for example, articles 42, II and 43. The 2nd section of the STJ concluded judgment of IAC (nº4) – Incident of Assumption of Jurisdiction – which dealt with an intellectual property issue involving the cultivation of transgenic soy, having, on one side, rural producers’ unions and, on the other, the multinational Monsanto. The lawsuit debated the possibility of granting simultaneous protection – by the invention patent and cultivar protection institutes – to transgenic Roundup Ready (RR) soybean seeds, and whether or not rural producers are entitled to reserve the product of its cultivation for replanting and commercialization as food and raw material, as well as the right of small farmers to donate or exchange seeds reserved in the context of specific special programs. There are many requests analyzed and debated in their technicality that are extremely controversial and dubious when interpreted by the Courts, precisely because of the lack of conceptualization and practical delimitation between what is biological and what is technical, what is microbiological, which is potentially harmful to the environment, among other issues of a political, economic and ideological nature, as well as the training of the magistrate who is an operator of the law and not an expert in biotechnology or biology. We need to continue to discuss the topic and its feasibility for the country, as well as propose urgent changes to some articles of the patent law, since it is a matter of public interest with enormous socioeconomic repercussions and deleterious effects on the right to food and national agriculture itself. Not agreeing with some premises of the judgment, and in the course of the study we will analyze the reasons for the divergences.
Keywords: Patents. Plant Variety. Cumulation. Public Domain.
