Newsletter Edition 27 - July 2021


IP litigation issues in the EMERJ debate

On July 16th, during a virtual debate promoted by EMERJ – Rio de Janeiro State Magistracy School, ABPI’s president, Luiz Edgard Montaury Pimenta, indicated four relevant points of litigation in intellectual property present in Brazilian courts: the issue concerning qualified expertise, the lack of specialized corporate chambers in the Rio de Janeiro State Court of Appeals (TJ-RJ), the preliminary injunctions and the excessive delay in the granting of patents by the BPTO – Brazilian Patent and Trademark Office. The debate on Disputes in Copyright, mediated by judges Cláudia Telles de Menezes and Cristina Tereza Gauli, also featured presentations by prosecutor Guilherme Braga Peña de Moraes and lawyers Simone Lahorgue Nunes and Gustavo Martins de Almeida.

Regarding qualified expertise, Montaury Pimenta highlighted the often lack of technical qualification of the expert appointed by the magistrate, which causes delays in the process and impairs the quality of decisions. On the issue of the lack of chambers specializing in corporate law in the TJ-RJ, as is the case in the TJ-SP (São Paulo State Court of Appeals), he explained that he recently discussed the matter with the president of the TJ-RJ, Judge Henrique de Andrade Figueira, who will participate as a speaker at ABPI’s International Congress on Intellectual Property, to be held on August 23rd – 26th.

On the issue of injunctions that deal with infringement of trademarks, patents and unfair competition, ABPI’s president noted that the indemnities charged to the infringers do not compensate for the damage caused to the holder of the rights. According to him, the infringer often uses a trademark or patent for years and, at the end of the process, is condemned to pay low royalties, equivalent to those of a legal licensee, but without the contractual obligations of licensing. “In general, indemnities in the Brazilian courts, despite having improved, are still low and do not serve as a disincentive to the practice of infractions”, he stated.

In his presentation, Peña de Moraes highlighted the fact that the internet lost its entertainment feature to become a forum for political manifestation and, in this line, cited examples from several countries, such as Iceland, which even crowdsourced its Constitution with help from social media. In turn, lawyer Simone Lahorgue Nunes addressed the problem of the appropriation of content produced by traditional media by new digital platforms. She cited the examples of the European Union, which used copyright law to balance these two interests, and the Australian News Media Bargaining Code, which aims to make big companies, such as Google and Facebook, negotiate some kind of remuneration for media.

In his approach on copyright in the visual arts, lawyer Martins de Almeida presented museum images and emblematic works to demonstrate the global trend towards digitizing collections and the various forms of art that are becoming more accessible to the general public. “I tried to show a broad view of copyright and its reflection on the world of arts, in this universe of relationships that go beyond the mere exhibition of the work, and branches out through a holistic and contractual view”, he explained.

Watch EMERJ’s YouTube webinar.