The indication of a brand by internet search websites does not constitute a trademark infringement within the scope of the Brazilian Industrial Property Law (Law 9,279/96), according to the interpretation of Eduardo Azuma Nishi, Judge of the Court of Justice of São Paulo (TJ-SP). “From a brand point of view, I don’t see a typified infringement”, said the Judge, who participated in the panel “Online advertising – practical and legal challenges of a new communication reality”, alongside Camila Rosa, Associate Litigation Counsel at Google, lawyer Eduardo Mendonça, and Tatiana Campello, ABPI’s Treasurer.
In the Judge’s interpretation, the restrictions imposed on the use of a brand by third parties contained in Article 132 of the Brazilian Industrial Property Law refer to its use as a visually noticeable distinctive sign and should be analyzed accordingly. “In Article 132 we see that visually noticeable distinctive signs are susceptible to brands. In other words, the exclusive use of the brand by the legitimate holder refers not to its absolute use, but as visually noticeable signs of products and services”, he explained.
In her presentation, Camila described the Google Ads tools, which already have more than 1 billion users. As she explained, according to the rules for using the service, a trademark cannot be used in the text of advertisements. But its use as a search term by resellers is allowed. “As a search term, it is clear to the consumer that this is an ad that also refers to other brands, which is beneficial for him”, she stated.
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