Month: January 2021

Legitimate Interest In Action

With the beginning of the data age, companies and organizations started to store more information about their customers uncontrollably. Papers storing the information became to be digitally retained by organizations.

To comply with the new global trend on processing data, Brazil issued a law known as the General Law for the Protection of Personal Data (LGPD) as of August 14, 2018. This law entered into force in September 2020 to regulate the processing of personal data in Brazil.

Ten legal bases set the conditions for processing personal data. The legitimate interest is one of the most flexible ways of making data processing viable by the controller.

The organization needs to carry out some tests to ensure that the legitimate interest can be applied as a legal basis for data processing, evaluating, and documenting the Legitimate Interest Assessment (LIA).

One should consider some issues to ensure that the legitimate interest is applicable to data processing, such as:

· Why do you want to process personal data?

· What benefit do you expect to obtain from the processing of personal data?

· Do any third parties benefit from the processing of personal data?

· How significant are these benefits?

· What would be the impact if you could not continue with treatment?

· What is the intended outcome for the data subject?

The company needs to balance the factors identified during the assessment and decide whether it still believes that its interests are compatible with the treatment of data taking into account reasonability and ethics as guiding principles of the test.

It is relevant to advise the person in charge of personal data protection or advise a consultant specialized in Digital Compliance, bringing benefits in the evaluation procedure to ensure that the company reaches a satisfactory degree of compliance with the data protection regulations.

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Lawyer Author of the Comment: Felipe Liphaus

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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.”

#Compliancedigital #DireitoDigital #governançadedados #GovernançaDigital LGPD

Priority examination for patent applications in Brazil

In Brazil, through the Brazilian Trademark and Patent Office (BPTO), it is possible to request priority for a patent application in some specific cases, listed below:

1) Based on the applicant:

– physical person of age 60 or older;

– physical person with physical or mental disabilities;

– person with a serious disease;

– Micro-Enterprises and/or small-sized companies;

– Scientific, technological, and innovation institutions;

– Startups.

2) Based on the situation:

– Applications that need to be granted in order to obtain financial resources;

– when third parties are being accused of counterfeiting the object of the patent application;

– applications that third parties own a technology that was later applied for as a patent;

– Technology processes resulting from public funding;

– Technology processes available on the market.

3) Based on the technology

– applications seeking protection of green technology;

– applications whose object is a product for treatment of specific diseases, including Covid-19.

4) Based on the cooperation

– Applications of patent families whose protection was initially requested in Brazil;

– Applications whose matter was considered to be patentable by a partner office.

Usually, the priority is applicable in cases that require urgent analysis, which justifies the priority in relation to other patents applications. We clarify that even for patent applications in which it is not possible to apply for priority, the BPTO has been working to reduce the backlog.

It is important to note that for each type of situation in which priority is applicable, different documents will be required and the amount of the fee also differs from case to case.

Peduti Advogados assists companies and individuals on this kind of procedure. Feel free to contact us if you want to know more information about this procedure.

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Lawyer Author of the Comment: Luciana Santos Fernandes

Source

Headline: Trâmite prioritário – NOVOS PROJETOS-PILOTO

#analysis #patentsapplication #priority

The importance of the evidence in a claim of trademark distinctiveness

Priority examination for patent applications in Brazil

In a recent decision, the Norwegian Board of Appeals confirmed the rejection decision issued by the Norwegian Industrial Property Office (NIPO) and declined Facebook’s claim to register the WhatsApp Logo for a variety of products and services, such as software and telecommunication services. This decision is surprising, not just based on the insertion of this logo as a mark in the world’s routine, but also because it may be the result of failure of the evidence submitted to support the trademark distinctiveness.

The Norwegian Board of Appeals sustained that the trademark was unable to function as a “symbol of commercial origin”, and that its level of distinctiveness was deemed insufficient to be registered as a trademark, confirming the NIPO’s rejection decision.

It is unthinkable that Facebook would have a hard time proving the distinctiveness of the WhatsApp’s logo, since we as consumers immediately connect this symbol to its products and services as soon as we see it anywhere. Therefore, what comes to our mind is that the gathering of evidence in this case was not as careful as the circumstances required.

Therefore, this situation clearly shows that the investment in marketing, publicity and sales should not be the only focus a company should have to build a strong and valuable trademark, it is likewise of great importance to care about all legal aspects that involve the protection of that mark.

The owner of a trademark that has its distinctiveness challenged shall not rely only on the supposed fame and large recognition of the sign, instead sufficient time and effort should also be devoted to gather evidence of the dissemination of the sign in the relevant market. The proof of distinctiveness can be, in some cases, as important as the distinctiveness itself.

The failure of proving a mark is registrable and has – or has acquired by virtue of extensive use – sufficient distinctiveness could be, in the end, disastrous to the business results as a whole, especially if the company has already put a lot of effort and money to establish the sign in the market and to connect to its products and/or services.

In the worst-case scenario, all the investment already made in a mark might be in vain if the necessary legal care is not taken properly.

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Lawyer Author of the Comment: Gabriela Miranda

Source

Headline: Bad news for WhatsApp as Norwegian Board of Appeal refuses to register logo

Distinctiveness evidence Trademark

The use of exaggeration in the advertising industry – the puffing technique

Puffing is the advertising technique of using exaggerated adjectives, which may or may not cause misleading. This advertising practice is not prohibited in cases where the exaggeration used is evident and harmless and does not have the animosity or capacity to deceive the consumer.

In this sense, the use of puffing should be limited to its legitimacy of use when it does not mislead the consumer or causes him to acquire what he does not want because it is excessive and abusive advertising. Therefore, when exaggeration is easily observed, there is legitimacy for use.

The brazilian doctrine understands that puffing is not prohibited, as it is represented “as flashy advertising, whose subjective or playful character does not allow it to be objectively seen as binding.”¹

To test whether or not there is a subjective criterion, which does not use a critical and individual assessment of the consumer. Thus, the personal element (personal opinion) will prevail, and consumers will choose the product according to their personal interests and motivations and will not respond to the exaggerations caused by puffing as “the best flavor”, “the film of the year” etc.

puffing advertising technique

Additionally, as the puffing technique is very common when exaggeration is used to refer to the subjective elements of the product to which the ad refers, such as the expressions “the most delicious”, “the best flavor”, “the most welcoming”, and there is no need to demand proof of such statements, as consumers’ opinions about the product or service will certainly be different. For this reason, the consumer does not credit the ad for its exaggerated subjective character.

It can be used as an advertising technique when it is perfectly possible for the consumer to understand the exaggerated and sumptuous character of advertising, when it is, for example, an exaggeration that has a subjective aspect as its object.

If the exaggeration refers to an element that can be objectively measured and, after criteria have been established and the evaluation has been carried out, the object of the puffing does not correspond to the reality of the advertised product or service, advertising will be misleading.

If it’s considered a misleading information/advertisement, it can be fought by unfair competition supported by the brazilian law.

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¹ JUNIOR, Nelson Nery. Os princípios gerais do Código Brasileiro de Defesa do Consumidor, Revista, p. 67

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Lawyer Author of the Comment: Laís Iamauchi de Araujo

Source: The puffing advertising technique

#advertising #puffing

How maradona’s trademarks were not under his ownership

Diego Armando Maradona, the soccer player from Argetina that passed away on November 25th, 2020, although being worldwide famous and known not only by soccer fans, was not the owner of the brands related to him, such as “Diego Armando Maradona”, “Diego Maradona”, “Maradona”, “Diegol”, “El 10”, “El Diego” e “La Mano de Dios”, registered in Instituto Nacional de La Propriedad Industrial of Argetina.

According to the magazine “Olé”, also from Argetina, the brands are registered under the titularity of the company Sattvica S.A., that is reporterdly controled and owned by Matías Morla, Maradona’s last attorney, and Maradona does not appear in any kind of information of the brands registration.

fonte: ole.com.ar

It is important to highlight that the ownership of the brands by the company does not mean that there was any kind of illegality, bearing in mind that is possible that the soccer player has assigned his rights to the company.

This subject will now be discussed by Maradona’s Family on the inventory process in order to clarify if the brands should be part of the division of Maradon’s assets.

In any case, this situation shows the importance of the regular brand registration, bearing in mind that it is one of the most important and valuable assets owned by someone, such as Maradona’s trademarks.

Maria Luiza Barros da Silveira, December 11th, 2020.

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Lawyer Author of the Comment: Maria Luiza Barros da Silveira

Source: Empresa do advogado de Diego Maradona é dona de todas as marcas do ex-jogador, diz jornal

Source: Una empresa de Morla es la propietaria de todas las marcas Maradona

#brand #industrialproperty #Maradona #soccer #trademarkregistration

The Legal Framework for Startups

On December 14th, the Chamber of Deputies of Brazil approved the complementary bill (PLP) 146/19 better known as the “Legal Framework for Startups” and now is subject to the appreciation by the Federal Senate.

According to the bill, the startups shold have a history of up to ten years since foundation and up to 16 million reais of annual revenue.

The company also needs to declare that it has an innovative business model or that it belongs to the special regime Inova Simples, provided for in The General Law on Micro and Small Enterprises (123/06) it has the objective of establishing general rules regarding the differentiated treatment to be given to micro-enterprises (MEs) and Small Companies (EPPs) throughout the country.

The draft bill provides to implementation of a regulatory sandbox to stimulate innovation. Also provides a special bidding procedure to stimulate investment in startups. Furthermore, the draft bill provides rules will affect the working relationships.

In short, the “Legal Framework for Startups” proposes to facilitate the expansion of the startups market in the country, especially because promises simplifying bureaucracy and to create a more legally secure environment for entrepreneurs and potential investors.

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Lawyer Author of the Comment: Sheila de Souza Rodrigues

Source: Câmara dos Deputados aprova marco legal das startups

#inovation #startup