Software licensing contracts and its characteristics

Licensing contracts are contracts that allow use by a third party other than its depositor / inventor ensuring that the ownership of the invention remain with the inventor himself. 

The software in particular is a copyright, so there is no need to speak here in Brazil about a software purchase (only with regard to the patrimonial rights of this software) because the moral rights are personal rights – which are inalienable and irrevocable. 

In order to allow other users to have access to the software, the parts celebrate a licensing agreement. This is because it is interesting for developers to invest in the software so that the original software is used because it is safe and reliable. 

It is important that companies that intend to use third party authoring software enter into a licensing agreement to keep themselves safe both in terms of data vulnerability, access to sensitive information, viruses, etc. 

software licensing contracts and its characteristics

It is also important to note that the use of software outside the terms of the license or without a license is classified as counterfeit and can cause major problems for companies that use the counterfeit softwares. 

When it comes to softwares, there are different licensing agreements, the most common being those based on the number of users allowed (using the licensed software) and those based on the number of computers that the licensed software can run on. 

Most companies that license some softwares usually choose the licensing terms to be for a number of users or to be used by everyone in a given environment.

Every software license has an expiration date, except for perpetual use. The permission is canceled whenever someone violates the contract, disrespecting the terms of use. Some licenses need to be renewed with each system update for the user to have access to the new versions. Others have automatic renewal.

Licensing agreements do not need to be registered towards the BRPTO, only the transfer of the use of the source code to third parties is formalized through a technology transfer contract, which must be registered towards the BRPTO, pursuant to article 211 of Law 9,279, of May 14, 1996 (“Law 9,279 / 96 ”), And of article 11 of the Software Law, since such registration is a condition to generate effects before third parties.

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Lawyer Author of the Comment: Laís Iamauchi de Araujo

Source

Headline:It is important that companies that intend to use third party authoring software enter into a licensing agreement to keep themselves safe both in terms of data vulnerability, access to sensitive information, viruses, etc.

“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.”

Does purposely destroing a work of art infringe copyright laws?

In mid-August, 2020, Romero Britto, a renowned Brazilian artist, became a trending topic on social media, for being involved in a quarrel in an art gallery in the USA, where he was holding a photo session. 

In the video, it is possible to see that a woman approached the artist holding one of his porcelain sculptures and accusing him of mistreating the employees of her restaurant. Then, the woman threw the sculpture on the floor and left Mr. Britto incredulous.

However, what if that happened in Brazil? Would have the woman committed a copyright violation? The answer is affirmative, because the destruction of a work of art implies an offense to the author’s moral rights.

The author of a work of art has both economic and moral rights. 

Does purposely destroing a work of art violet copyright laws?

Economic rights are ensured by article 28 of the Copyright Law (Law 9610/98) and guarantees that authors have the right to economically exploit their intellectual creations, through their publication, use or reproduction.

In turn, moral rights are provided for in Article 24 of the Copyright Law and are understood as “existential subjective rights”, as they have no economic content. By protecting the author’s personality materialized in the intellectual work, the author’s existential subjective right assumes a very personal character, being considered a personality right.

Among the moral rights of an author, we highlight the right to the integrity of the work, which is the author’s ability to oppose any modification of the work or the practice of any act that, in any way, could harm or affect it, as an author, in his/her reputation and honor.

Therefore, when breaking the sculpture of the artist Romero Britto, the woman did not destroy a mere porcelain object, but the artist’s own intellectual creation, the spirit of the artist embodied in it and the projection of the personality of its creator. And, if the situation had occurred in Brazil, she could be held liable for violation of the Copyright Law.

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Lawyer Author of the Comment: Thaís de Kássia Rodrigues Almeida Penteado

Source

Headline: Restaurant owner smashes artwork after artist allegedly mistreats employees.

“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.”

INTELLECTUAL PROPERTY RIGHTS IN BRAZIL: JUDGMENT ABOUT RIGHT OF PRECEDENCE IN REGISTRATION

intellectual property rights in brazil judgment about right of precedence in registration

An important company specializing in feminine hygiene filed a nullity action of a trademark registration granted by the National Institute of Industrial Property (INPI) to a competing firm
based on Article 6 bis (3) of the Paris Convention (CUP).

According to the special rule laid down in article 6 bis (3) of the Paris Convention (CUP) “No time limit shall be fixed for requesting the cancellation or the prohibition of the use of marks registered or used in bad faith (l).”

The monocratic decision welcomed the request formulated by the plaintiff, but the Federal Court of Appeal for the 2nd Region (TRF2) reformed the sentence and concluded that the trademark “Sempre Livre” coexisted peacefully with similar trademarks that identifies and identify and distinguishes the same products composed of the word “Livre” in the market; additionally, that the opposing party has not acted in bad faith when filing the trademark registrations. Thus, the Court has rejected the claim of the right of precedence in registration.

intellectual property rights in brazil judgment about right of precedence in registration

In August of this year, in the judgment of Special Appeal under Specific Court Regulations nº 1.741.532, The Superior Court of Justice – STJ, the highest Brazilian court for standardizing the interpretation of federal law all over the country – confirmed the understanding of the Federal Court of Appeal for the 2nd Region.

In Brazil there are a handful of exceptions to this general rule in the Brazilian Industrial Property Law (Law nº. 9.279, of May 14, 1996), including a “right of precedence in registration” set out in Article 129, Paragraph 1, which establishes that “any person who in good faith had been using an identical or similar mark for at least six months in Brazil to distinguish or certify a product or service that is identical, similar or akin, will have preferential right to registration”.

If your business is using a symbol, word, frase, or combination thereof to identify its goods or services, you should take steps to prevent your competitors from using that distinctive signs in the same way. Your trademark represents the reputation of your business.

It is always advisable to consult a specialist Intellectual Property lawyer to prevent losses and conflicts of interest with other companies.

Do you have any questions about Brazilian intellectual property rights? Contact us.

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Lawyer Author of the Comment: Sheila de Souza Rodrigues

Source

Headline: Fabricante de Sempre Livre não consegue anular marca concorrente

“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.”

Trade dress infringement lawsuit in Brazil requires expert examination

Trade dress is the characteristics of the visual appearance of a product or service. It consists of all the elements, such as the shape, design, colors, that are used to “package” the product or service and make it distinct, identifying the goods, as trademark does. A package of a product can have a specific trade dress, but also a chain of fast-food restaurant does.

Although Brazilian law does not have specific protection of trade dress, neither a mechanism for registering the trade dress, it can be protected by the Brazilian Industrial Property Law (Law # 9279/96) under the repression of unfair competition.

Companies that have their trade dress violated by others can file a lawsuit to refrain the offender from violating the trade dress of its products or serves and claim material and moral damages.

Since trade dress involves a series of unlimited elements than can make a product or service distinct, this type claim requires an expert examination to analyze if the defendant use of similar elements constitute a trade dress violation and unfair competition.

This is the understanding of Brazilian Superior Court of Justice. On an important trial in February 2019 the Superior Court of Justice established that trade dress violation claims requires examination from experts to evaluate market aspects, consumer habits, marketing technics, the degree of attention of consumers on specific market niches as well as the elements used to present the product or service.

In the case law, Superior Court of Justice annulled a sentence that has denied the expert examination request and analyzed the case by merely comparing photographs. 

This is and important precedent of trade dress infringement lawsuits in Brazil and has settled a relevant understanding on how this kind of lawsuit must be handled.

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Lawyer Author of the Comment: Pedro Eurico de Souza Cruz Teixeira

“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.”

Brazilian Trademark and Patent Office will issue a guideline for patents implemented through software

The Brazilian Trademark and Patent Office (INPI) has strict guidelines to exam inventions implemented through software. A Patent related to a software usually has algorithms that are a kind of methods to solve problems.

The Brazilian law states that certain methods cannot be granted as patents. These methods are: mathematical methods, methods of a commercial, accounting, financial, educational, publishing, lottery or fiscal nature; computer programmes per se; operating or surgical techniques and therapeutic or diagnostic methods, for use on the human or animal body.

So, if the examiner understands that the algorithm or the software are one of the methods listed above, the Patent is not granted.


Considering that patents related to software are becoming more common, INPI created a guideline exclusively to inventions implemented through software. The guideline was published for a public consultation and suggestions by interested parties.

After that, INPI will analyses the suggestion and publish a resolution with the guideline.

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Lawyer Author of the Comment: Laila dos Reis Araujo

“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.”

The trademark ownership by more than one company will be allowed in Brazil from September 15, 2020

Since last year, the Brazilian Trademark and Patent office (INPI) has published a resolution stating rules about the trademark ownership in Brazil. In accordance with the Madrid Protocol rules, the states should allow that more than one company/person to be owner of the trademark applications.

This resolution will be in force from September 15, 2020. Thus, it will be possible to file new trademarks in name of more than one company. It will also be possible to transfer part of an application filed before this resolution allowing the co-ownership.

When a trademark is owned by more than one company, it will be allowed that just one of them to oppose against a similar trademark. However, to respond an office action or an opposition is mandatory the signature of both.

If you have any question regarding this new procedure feel free to contact Peduti Advogados.

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Lawyer Author of the Comment: Laila dos Reis Araujo

“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.”