Newsletter Edition 34 - March 2022


Interview with Pedro Marcos Barbosa: Unfair Competition and Intellectual Property

Lawyer Pedro Marcos Nunes Barbosa, an author of several books and articles on intellectual property, has just launched, by Lumens Editora, the book “Curso de Concorrência Desleal” (Unfair Competition Course). In this work, he distinguishes the concept of rivalry from the competition, analyzes the structure of the unfair competition, and compares it with civil liability. Barbosa completed a Post-Doctoral Internship in Civil Law at USP – the University of São Paulo, where he also took a Doctorate in Commercial Law. With a Master’s in Civil Law (UERJ – Rio de Janeiro State University), he is a partner of Denis Barbosa Advogados and a professor at the Law Department at PUC-Rio, where he teaches Intellectual Property, Civil Law, and Commercial Law for undergraduate, specialization and master’s degrees.

ABPI News – What is the purpose of the book/course on unfair competition?

Pedro Marcos Nunes Barbosa: The proposal was to start from the rich doctrinal state of the art, built by the best brains in the West, to combine the critical contribution of this doctrine with judgments from Brazilian courts, as to determine how such zetetic premises are receiving density in the praetorian ruling. The work is divided into three parts, each part containing three chapters. One is aimed at the subject and object of unfair competition, besides distinguishing the institution of the rivalry concept. The second part analyzes the structure of unfair competition, its classic incidences, as well as its contemporary manifestation – including dialoguing with Tax, Labor, and Administrative Law. Finally, the work compares civil liability in unfair competition, the phenomenon of competitive parasitism, and free enterprise. In other words, the work proposal was to horizontalize and verticalize what is observed in the daily life of the intellectual property professional, and to propose objective ways of comparing the abuse of the freedom to compete, criteria for measuring the damage suffered, and to avoid that legal paternalism restricts harmful conduct, but which are legitimate, and which do not amount to acts of unfair competition.

ABPI News – What is the difference between unfair and illegal competition?

PMNB: This theme runs through chapters 3, 4, and 5 of the work. In summary, the structural support of unfair competition is based on the so-called law abuse, in what differs from the illegal competition, which is built on strict legality (e.g., art. 195 of Law 9,279/96), and prohibited competition, which spreads in property rights (such as patents, cultivars, trademarks, company names, domain names, industrial designs, etc.) or private pacts of competitive delimitation. Therefore, unfair competition is a subsidiary institute to illegal competition and prohibited competition, which, however, does not minimize its relevance or incidence. When analyzing the concept of disloyalty, the doctrine does not disagree in giving it specific density, that is, case-by-case. What is loyal is correlated with the concept of what – even if harmful – is expected and regular in the specific sector in which the dispute occurs; without neglecting the fact that agents’ conduct varies over time. What was regular 10 years ago may no longer be regular in a specific sector, either because the conduct has become milder or even more acute, without one of these phenomena reflecting certain disloyalty. Therefore, one of the greatest difficulties in properly resolving the issue of loyalty is to avoid projecting patterns from other economic sectors, to the one intended to decide.

ABPI News – What is the main challenge for the judging body in cases involving unfair competition/intellectual property?

PMNB: The judging body is not always an expert in the type of dispute it will settle, like what happens in arbitration or even between the BPTO (Brazilian Patent and Trademark Office) or SNPC (National Service for Plant Variety Protection) servers. Therefore, when there is disagreement about the facts, it is essential to have an assistant of the Court who is, in fact, an expert in the field. Another complexity is avoiding the projection of moral values ​​in economic disputes of greater abrasiveness since some degree of damage is inherent to free initiative and free competition. Only when the damage is configured as unfair and triggers the abuse of the freedom to compete should it be determined the cessation of that form of competition, but never of the competition itself. In other words, the medicine dosage for the most aggressive acts of competition is also complex to manipulate.