What is unfair competition? How to proceed in Brazil if my competitor practices unfair competition?

The unfair competition is a crime provided in the Brazilian Industrial Property Law. It is committed by anyone who:

  • employs fraudulent means to divert customers of others, to his own or another party’s advantage;
  • publishes, by whatever means, false statements to the detriment of a competitor, for the purpose of obtaining any advantage;
  • uses, unduly, a third party’s trade name, business name or insignia, or sells, displays or offers for sale or has in stock a product bearing these references;
  • and others hypothesis provided in the law.

 

 

Acts of unfair competition are generally characterized by bad faith, fraud and deceptive trade practices.

The penalty for unfair competition crimes in Brazil is imprisonment of 3 (three) months to 1 (one) year, or a fine.

The perpetrator also must be processed, to pay all the damages caused. A suit might result in an order of monetary damages and an injunction against the guilty party if continue with such actions.

A prompt action against the competitor is important to avoid damages, confusion or association by the customers.

We emphasize that is important to be assisted by professionals specialized in intellectual property in these cases. Our office monitors your intellectual property rights and possible violations. Contact us for more information.

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Author: Luciana Santos Fernandes, Junior Associate at 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.”

The Skate Fairy – Rayssa Leal fights a dispute in Brazil for the annulment of the registration of the trademark “Fadinha do Skate” (The skate fairy)

In September 2019, a company called RRS Odontologia, a dentistry company located in Maranhão, Brazil presented a trademark application for the trademark “FADINHA DO SKATE” (the skate fairy), nickname Rayssa (Olympic Athlete) is known for in the whole world.

In August 2020, Rayssa claimed the cancellation of the trademark register before the BRPTO based on article 124, XVI in which is stated that a trademark it is not registerable as a well-known pseudonym or nickname, singular or collective artistic name, except with the consent of the owner, heirs or successors.

The expression “FADINHA DO SKATE” it’s a well-known nickname adopted by Rayssa and the dentistry company did not have the consent from Rayssa to register it as a trademark. The Olympic athlete’s defense argued that “A simple search for the expression on Google returns numerous news, images and videos with quotes from the nickname with which the applicant was famously known in the country and in the international sports world”.

 

Rayssa Leal, a ‘Fadinha do Brasil”, comemora a conquista da medalha de prata no skate street
Foto: Wander Roberto – 26.jul.2021/COB

 

To get the trademark, Rayssa had two paths: requesting the registration of the same expression in different categories than the company in her city already has (clothing and medical and educational services) or trying to cancel the granted registrations. She chose the second one and is trying to cancel the third-party registration.

Then, the BRPTO will analyze if the trademark “FADINHA DO SKATE” its really a well-known nickname as she defends.

The main discussion is that this decision will depend on the it evidence presented by Rayssa because the truth is: this nickname is highly associated with her now due to the Olympic games but is she known by this nickname for that long? Or was it only well-known by the skaters?

Considering the chances of Rayssa, its not possible to know whether the BRPTO will follow one or other path. The BRPTO can point out that she should have monitor this trademark applications before its grant and not after that.

In these cases there is more chance to cancel the trademarks in a nullity action than administratively in the BRPTO. But, the BRPTO can follow another understanding regarding this matter.

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Author: Laís Iamauchi de Araujo, Associate Lawyer at 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.”