Edition: 202 | Month: May | June | Year: 2026
Editor note’s
By Paulo Parente Marques Mendes and Carlos Eduardo Neves De Carvalho.
7
5th Scientific Meeting of ABPI’s Study Committees
31
The right of precedence and the principle of balancing
in the jurisprudence of the Superior Court of Justice (STJ):
limits to the relativization of the trademark attribution system
By Kone Prieto Furtunato, Lucas Ramires Pêgo and João Pupo
The article aims to present considerations regarding the legal problem of whether the right of precedence can, through the application of the theory of balancing, override the right of nationally valid trademark ownership, especially when the prior distinctive sign is merely a trade name, whose state territorial protection is already consolidated and with recurring understanding in the jurisprudence of the Superior Court of
Justice (STJ), which requires examination under three dimensions:
(i) the attributive nature of the system; (ii) the limits of balancing; and (iii) the coherence between the normative hierarchy and the constitucional principles of free initiative and competition. It is considered that the right of precedence should be understood as a legal exception to the right of ownership and, thus, its exercise is restricted and conditioned on three cumulative requiments: effective prior use, good faith, and timeliness in the assertion. It is concluded that examining the right of precedence in light of the attributive system and the theory of balancing leads to the
understanding that the institute must be interpreted restrictively,
otherwise it risks compromising legal certainty and the social
function of industrial property.
Keywords: Right of Precedence. Principle of Balancing.
Trademarks.
35
The impact of FRAND terms on the licensing of standard-essential
patents and their implications for innovation, efficiency, and
competitiveness of Brazilian companies in the telecommunications
and technology sectors
By Giovanna Martins Sampaio, Bruno dos Passos Assis, João Antonio Belmino dos Santos and Carolina Martins Sampaio
This study investigates how the application of FRAND terms in the licensing of standard-essential patents (SEPs) influences innovation, efficiency, and the competitiveness of Brazilian companies in the telecommunications and technology sectors. Based on a literature review, the research explores the evolution of technological standards from 2G to 6G, the role of regulatory bodies, the legal and economic challenges of licensing in Brazil, and the impact of FRAND terms on balancing innovation and access to technology. Additionally, the study discusses the practice of hold-out, which delays the adoption of new
technologies by hindering royalty payments, and analyzes international strategies—such as those adopted by the European Union and the United States—to mitigate its effects. The role of Ericsson in this ecosystem is also highlighted, as well as the need for a more efficient regulatory environment to encourage investment and reduce litigation. As a contribution, the study offers recommendations to improve SEP licensing in Brazil, fostering greater innovation and competitiveness in the sector.
Keywords: FRAND Terms, Standard-Essential Patents (SEPs),
Telecommunications, Innovation, Hold-out.
46
Sufficiency of Disclosure in Patent Law: Judicial Expert Errors
and Appellate Control by the Federal Regional Court of the
2nd Region (Part I)
By Leonardo Pontes
Sufficiency of disclosure in patents and utility models is briefly examined. The objective of this article is to alert professionals in the field to serious technical errors committed by judicial experts whose incorrect understanding of the relevant legal doctrine has served as the basis for annulling patents in a contra legem manner. This occurs because trial judges generally refrain from ruling against court-appointed experts, even though they should do so in their capacity as peritus peritorum. Fortunately, such expert opinions are subject to review and control by the Federal Regional Court of the 2nd Region as a mixed question of fact and law, particularly by the Court’s 2nd Specialized Panel, which has played an exemplary role in correcting errors that are detrimental to the national patent system and, moreover, inconsistent with international instruments such as the TRIPS Agreement.
Keywords: Patent law. Expert evidence. Patent invalidity.
Technical analysis. Judicial review.
65
Intellectual property and the training of generative artificial
intelligence: between copyright restrictions and open licenses
By Isabela Lobianco Vicente Amorim
This article examines, from a copyright law perspective, the legal challenges arising from the training of generative artificial intelligence models on protected works and datasets, with particular attention to reproduction, transient copying, text and data mining, and the possible characterization of outputs as derivative works. It critically analyzes the main regulatory and scholarly responses currently under discussion around the world, notably fair training and opt-out mechanisms, arguing that, although relevant, they operate as limitations on right holders’ entitlements and do not fully resolve the underlying tensions. As an alternative, the article advocates for the promotion of open licensing – especially CC0 and CC-BY – combined with duties of governance, transparency, and reciprocity, as a more suitable path to reconcile private autonomy, legal certainty, and the long-term sustainability
of the informational ecosystem.
Keywords: Intellectual property. Generative artificial intelligence. Copyright. Open licenses. Creative commons.
75
The legal protection of gastronomic creations in brazilian copyright law
By Daniele Dora
This article analyzes the applicability of Brazilian copyright law to gastronomic creations, investigating its legal limits and impacts on innovation and entrepreneurship. It concludes that, although recipes and culinary techniques are predominantly utilitarian in nature, certain gastronomic expressions may receive copyright protection when they demonstrate originality and individualized creative expression.
Keywords: Gastronomy. Intellectual property. Culinary
inventions. Copyright. Cultural heritage.
85
Originality and Copyright: An analysis of clip and reaction profiles on digital platforms
By Luísa Rivéro Foss de Oliveira
This article examines the challenges posed to copyright law by new media formats on social networks, particularly “clip” and reaction profiles. It analyzes the foundations of copyright in order to define the scope of protection and the limitations to exclusive rights. In addition to reviewing legislation and scholarly doctrine, the study presents domestic and foreign cases that demonstrate a jurisprudential shift toward more flexible interpretations grounded in the protection of fundamental rights,
transformative uses, and derivative creations. It concludes that creative transformations play a central role in distinguishing lawful use from copyright infringement, insofar as they add new elements and meanings to the original work.
Keywords: Copyright. Reacts. Minimal Contribution. Limitations. Transformative Uses.
99
Dupe culture: desire, identity and the invisible limits of trademark protection
By Paulo Parente Marques Mendes and Amanda Aguiar Massa
Dupe culture is a contemporary phenomenon in which products resembling established brands circulate on social media as affordable alternatives. Although it has gained unprecedented visibility through digital platforms, its origins lie in deeply rooted human needs for belonging, aspiration, and social identification. From this behavioral perspective, this article examines the legal mechanisms available under Brazilian law to protect brand identity, addressing the challenges posed by non-traditional trademarks and the protection of sensory and experiential elements associated with the construction of meaning and market differentiation. Drawing on Brazilian and international cases, the
article discusses the shortcomings of the current legal framework in light of a reality in which a significant portion of brand value is associated with elements that do not always benefit from specific legal protection.
Keywords: Dupe Culture. Brand Protection. Non-Traditional
Trademarks. Intangible Assets. Fashion Law.
