Intellectual Property, trademarks, copyright, patents in Brazil


Violation of industrial property can be recognized without quantifying damage

In cases of violation of industrial property right, although there is no exact measurement of damages, compensation action may be upheld if the unlawful practice has been recognized - in which case the calculation of damages is for the liquidation of the judgment . The decision of the Fourth Chamber of the Superior Court of Justice (STJ), concerns a suit for damages against the company that imported and sold without consent, used products from another brand. The world famous Konica-Minolta copier maker, filed a lawsuit for damages against the Active, the company that imported machinery used Minolta, acquired from third parties, and recondicionava, replacing defective parts, for sale on the market. The recovery of the equipment, however, would be illegal because it was not authorized by the original company. The Minolta Turns accused of counterfeiting (product counterfeiting) and unfair competition. The Trial Court dismissed the claim. However, an appeal filed by the Court Turns the Amazon (TJAM), the claim for compensation for lost profits and consequential damages was denied because the extent of damage - even if existing - was not demonstrated. Both the Active and the Minolta appealed to the Supreme Court. The first argued that there is counterfeit, because the products were purchased from an authorized reseller, and that the original company can not prevent the free movement of products on the market (based on Article 132, paragraph III of the Law 9.279/96, the Industrial Property Law). The second held that the injury suffered by him was recognized by the state court and that the measure of damages is a matter for settlement of a judgment. The industrial property protection is a fundamental right guaranteed by the Constitution, as explained the rapporteur of resources, Minister Luis Felipe Solomon. According to him, this was proven right Minolta infringed by Active, which imported and used recondicionava photocopiers and sold using the name Minolta, even without control or guarantee the original brand to use original parts. The doctrine calls this dilution of the mark by obfuscation. Dilution is an insult to the integrity of a "distinctive sign" (in this case, the Minolta brand), which causes a decrease of power of sale of such distinguishing marks. One type of dilution - done in this case - is obfuscation: loss of brightness (or distinctive strength) of a brand, "a violation of the uniqueness of the signal from the time when the same expression is to identify products various sources. " "Admit that you can recondition products without submitting to the control and standards adopted by the proprietor would admit the confusion caused to consumers by acquiring branded product, expects commodity that meets a certain standard of quality and reliability associated to the sign, "considered the rapporteur. Still, the demonstration of injury is no easy task, because the damage does not always reveal the decline in profits, "What is common sense indicates that the brand owner would realize even greater profits if they do not suffer criminal competition." It this basically the text of Article 208 of the Industrial Property Law. With this, the minister claimed that Solomon, having the state court recognized the damage, "indicating some illegal conduct committed by the defendant, it is clear the obligation to indemnify." The Fourth Class reinstated the sentence which condemned Active, determining the calculation of damages in settlement.

Source: STJ

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