Newsletter Special Edition - 40th ABPI Congress - Day 3


Judicial predictability and specialization provide legal certainty

The need for specialization of Justice in the corporate area, as well as the standardization of judges’ decisions, set the tone on October 21st in the third plenary session of ABPI’s 40th International Congress on Intellectual Property. The debate “Decision-making Standardization in Industrial Property in Courts” brought together the judges Abel Gomes, from the 2nd Region TRF (Federal Court of Appeals), Flávia Romano, from TJ-RJ (Rio de Janeiro State Court of Appeals), and Manoel Pereira Calças, from TJ-SP, mediated by ABPI director Jacques Labrunie.

In his presentation, Judge Pereira Calças described the process of creating the three corporate courts in São Paulo in which he participated, and emphasized the importance of Judiciary specialization. “Judges are now specialized in first and second degrees in corporate and industrial property issues, and there is an improving trend”, he said, adding that the judiciary’s specialization guarantees legal certainty in decision-making. For the magistrate, issues involving unfair competition, trademarks, patents, licensing contracts, franchises, among others, are not of exclusive interest to the business community, but to the whole of society. “Companies compete in increasingly globalized markets, with increasingly smaller margins and, inexorably, will embed the uncertainty of judicial decisions in the prices of their products”.

For Judge Abel Gomes, legal certainty is linked not only to predictability but also to the quality of court decisions. “Predictability is an extremely important factor, but the correct decisions in this light are also a factor in consolidating the legal certainty we want”, he stated. He defended a greater harmony of the judges with decisions already consolidated. “We already have difficulty with the legislation that is put to us and, besides, we also need the judges to maintain a minimum of coherence concerning what has already been signed by the legal system in the sense of not distancing themselves from what has already been solidified”, he said. “Oftentimes there are issues that the Supreme Court itself did not recognize as unconstitutional. Some courts still try to bring issues about unconstitutionality to the heart of decisions, which no longer make sense”.

Judge Flávia Romano focused her presentation on the topic of the binding precedent, which gained legal status from Constitutional Amendment no. 3 and was later integrated into the new Civil Procedure Code (CPC). She showed that binding precedents involve three “core values ​​for the Democratic State of Law”: isonomy, legal certainty, and efficiency. Following the reasoning, she addressed the urgency of judicial protection in the improper use of a trademark, which “can have harmful effects on the distinctiveness of the sign”, and, in the same line, the consequences in the delay of the BPTO examination. She cited the patent backlog (stock of patent applications pending examination), noting that there are already second-instance decisions by the Federal Court of Appeals that understand that the writ of mandamus is an adequate means to speed up the examination “when the trend at the BPTO proves to be too slow”.

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