The growing value of trademarks in the Brazilian corporate landscape brought up a legal discussion over the effects of trademark infringement on the brands even when there is no proof of damages. That is because these distinctive signs have become indispensable hallmarks of credibility, demanding a different approach when it comes to liability.
The point of greatest friction in legal disputes lies in proving the damage caused by unauthorized use. In traditional civil liability actions, proof of losses and damages is required. On the other hand, within the scope of intellectual property, case law has consolidated the understanding that damages resulting from trademark infringement are presumed (in re ipsa). Although infringers frequently argue the absence of direct financial prejudice, the practical effect in the courts is that the mere violation of the right to exclusivity is sufficient to generate the duty to compensate.
In business practice, this means that the trademark owner does not need to produce complex evidence that they lost clients, suffered a drop in revenue, or had their image tarnished before the public to seek due reparation. Under the Brazilian Industrial Property Law (LPI), unauthorized use by third parties undermines the effort and investment applied to that distinctive sign. The damage is, therefore, intrinsic to the violation itself; for it arises the exact moment the legal monopoly is disrespected.
Even the argument that the infringement occurred for a short period or was “isolated conduct.” hits a rigid barrier and does not waive the duty to compensate. Misuse directly affects the company’s objective honor, which attracts the guideline of Precedent 227 (Súmula 227) of the Superior Court of Justice (STJ). Unauthorized association generates a real risk of consumer confusion, shaking the good name and reputation of the legal entity without the need for proof of actual material harm.
It is evident, therefore, that the repression of misuse demonstrates that building a top-tier trademark requires equally sophisticated legal support. The protection of an intellectual asset does not end with the granting of the registration by the BPTO (National Institute of Industrial Property); it requires constant vigilance, strategic management, and a clear vision of changes in the higher courts’ jurisprudence when combating unfair competition.
The complexity of these rules reinforces the need for trademark owners, entrepreneurs, and corporations to rely on the guidance of professionals specialized in Industrial Property. Only technical and strategic legal counsel is capable of shielding intangible assets against parasitism and ensuring that intellectual capital is properly valued and protected in the market.
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Author: Carlos Roberto Parra, Thaís de Kássia R. Almeida Penteado and Cesar Peduti Filho, Peduti Advogados.
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“If you want to learn more about this topic, contact the author or the managing partner, Dr. Cesar Peduti Filho.”
“Se quiser saber mais sobre este tema, contate o autor ou o Dr. Cesar Peduti Filho.”