The recognition of the strawberry from the Pioneer North of Parana as a Geographical Indication Registration

The Geographical Indication (G.I) registration is a collective tool developed for the valorization of traditional products from a certain region, with the main function of adding value to the product and protecting the producing region. In Brazil, this subject was introduced on the occasion of the enactment of the Industrial Property Law No. 9,279/96.

 

In Brazil there are two types of Geographical Indication, the indication of origin and the denomination of origin. In both modalities, protection will fall on the “geographical name”, constituted both by the official name and by the traditional or usual name of a determinable geographical area. The legislation in force does not establish a period of validity for Geographical Indications, so that the period for the use of the right is the same as the existence of the recognized product or service, within the peculiarities of the Indications of Origin and the Denominations of Origin.

 

In this sense, it is very important to highlight that the Brazilian PTO recognized the registration of a geographical indication of the Strawberry from the pioneer North. The seal for the strawberry was granted in the Indication of Origin modality (application number BR 402020000015-9 and registration concession code 395), related to the tradition and reputation of the producers, which makes the region known as a fruit production center. The four municipalities concentrate more than 500 small fruit growers, around 8 million plants cultivated in almost 200 hectares, and an annual production volume that reaches close to 7 thousand tons. The pioneer north is considered the largest strawberry producer in the entire state.

 

 

With the strawberry from the pioneer north, Paraná now has ten products with the GI registration. The others are: Antonina’s Banana Bullet, Capanema molasses, Carlópolis Guava, Witmarsum Cheese, Marialva Grapes, Café do Norte Pioneiro, Honey from the West, Honey from Ortigueira, Yerba Mate São Matheus, from the South of Paraná . Four other products are awaiting certification from the INPI, such as Wines from Bituruna, Barreado from the Coast of Paraná, Cassava Flour from the Coast of Paraná and Cachaça de Morretes.

 

According to the strawberry producer and president of the Norte Velho Association (ANV), Carlos Inácio, the main changes made to the properties of the approximately 25 members were to prioritize the use of organic products, which do not harm the environment, and to use, when necessary, only chemicals registered for strawberry cultivation. “The objective is to present a safe food to the final consumer”, he emphasizes. With the crop protected, fruit growers are able to grow strawberries all year round. For him, who lives exclusively on income from the fruit, the G.I will bring more competitiveness.

 

—

Author: Bruno Arminio, Associate Lawyer at Peduti Advogados.

Source: Geographical Indications registrations in Brazil and the recognition of the strawberry from the Pioneer North of Parana

—

“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.”

Brazil reaches 100 Geographical Indications

On this Tuesday, December 6, 2022, Brazil celebrates the recognition by the Brazilian Patent and Trademark Office of the 100th Brazilian Geographical Indication, the “Barreado do Litoral do Paraná”.

 

The first recognition took place exactly 20 years ago, which was the indication of source for wines from Vale dos Vinhedos, a region in the state of Rio Grande do Sul.

 

76 of these 100 indications are indications of source and 24 are apellation of origin.

 

 

The difference between these institutes is that the indication of source certifies that the region is known and recognized for the production of a product or provision of a service, while the apellation of origin certifies that the product or service has unique characteristics and qualities resulting from natural factors of the region or applied human processes.

 

35 geographical indications are from the Southeast region, 32 from the South region, 17 from the Northeast region, 12 from the North region and 4 from the Midwest.

 

64 of them are for agri-food products, 20 for non-agri-food products, 15 for wines and spirits and one for service.

 

The “Barreado do Litoral do Paraná” is a typical product of the coast of that state, which consists on products made of beef cooked exhaustively in a hermetically sealed pan with manioc flour gum, according to the tradition originating in the Azores, in Portugal.

 

In case of doubts or interest related to this subject, Peduti Attorneys i sat your disposal to assist you.

—

Author: Rafael Bruno Jacintho de Almeida, Head of Prosecution, and Carollina Marfará, Associate Lawyer at Peduti Advogados.

Source: With the barreado do Litoral do Paraná, Brazil reaches 100 Geographical Indications

—

“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.”

 

Here’s why Patents aren’t bad for innovation nor a threat to your company

Patents aren’t bad

Recently, Elon Musk made an appearance on CNBC’s “Jay Leno’s Garage” to host a tour around his SpaceX Star base facility in Texas [1]. 

 

Besides showing the amazing things Elon and his SpaceX crew have been building for their Mars Mission, when asked by Leno about “regulations and red tapes” regarding his inventions, Musk responded:

 

“Something that we should be worried about is that the rules and regulations get more and more every year. […] In the past, war has wiped away bad rules and regulations, but also, we prefer not to have war as the means of getting rid of rules and regulations. In the absence of that, what happens is there are more laws and more regulations every single year, and eventually we won’t be able to do anything. […] So, we do need to be cautious about overregulating and having too many rules and regulations basically stopping innovation and actually ultimately limiting the advance of civilization.” [SIC]

 

Moreover, when asked about the patents over his techniques to build his rockets, Elon said that he and his crew don’t patent things and don’t care about it either, opening source of all his “patents” so that anyone could use them.

 

Musk finished his statement by saying that “patents are for the weak”, “generally used as a blocking technique” and not actually helping advance things, but “stopping others from following you”. 

 

It’s not the first time Musk shared his opinion regarding intellectual property rights, specifically patents. In 2014, “in the spirit of the open-source movement, for the advancement of electric vehicle technology” [2], Tesla announced that it would not initiate patent lawsuits against anyone who, in good faith, wanted to use its technology [3], stating that patents “serve merely to stifle progress, entrench the positions of giant corporations and enrich those in the legal profession, rather than the actual inventors”. 

 

Without failing to recognize Musk’s successful trajectory, it’s important to respond to some of his statements. 

 

1. Firstly, it’s important to highlight that a patent is a title of exclusivity of exploitation granted to the holder of the invention – a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem [4] – by the State.

In most countries [5], for an invention to achieve a title of patent, it must go through a rigid process of study by professionals who will examine requirements for novelty (the object under analyses must be different from anything seen before in the market), inventive step (it must also contribute to the advancement of the technique or technology of a new product or new process), and industrial application (it must contain proof of human intellect effort). Without any of these requirements, the title won’t be granted. 

 

Which means, having a patent under your archive of creations is the same as attesting your ability to create something never seen before in the market with an extent of utility for society. Which cannot be misled as a curse for any business. 

 

Patents aren’t bad

 

2. The purpose of an intellectual property system and its protection resides on the promotion of the stock of knowledge available to society, as well as its dissemination and use at the end of the exclusivity period.

About this purpose, the Brazilian IPO makes a good point [6]. In summary, the importance of a patent resides on the empowerment of the patent holder during the period of its validity. Which does not equal as a blockage of use of the invention, but as a form of knowledge over the market, giving the creator the ability to know what markets show interest in its invention, as well as the purpose of its exploitation – which meets Elon’s interests, as he makes some of his creations available to the public to encourage innovation, and by knowing the ones that are using his creations, he will be able to form an even better data to do so. 

 

3. Besides that, it’s important to highlight that a patent’s protection is not perpetual. Thus, when its validity comes to an end, the information transferred to the database of the IPO system returns to the public domain. This means that the information does not go missing even after years of use. And even though Elon perceives as if his inventions won’t have any use in the future, there are no doubts that they will always carry a lot of useful information, which can be broken into pieces and studied even further [7]. 

 

4. The strategy used by Elon and his team does not apply to the common market. Entrepreneurs must have in mind that Elon’s beliefs rely on a market that does not have a considerable competition. 

In this sense, having the control over an invention can be used as a market strategy. Imagine being Steve Jobs and creating the iPhone, while sharing space with companies such as Samsung or Motorola. Perhaps you have on your hand a competitive advantage worth the protection [8]. 

In the face of all these reasons, it’s not fair or clever to believe that patents are bad for innovation or a threat to your company, especially when viewed through the lens of a more palpable competitive market.

 

—

Author: Juliana Kaomy Mikado, Junior Associate at Peduti Advogados.

Source: 

[1] ELON MUSK SHOWS JAY LENO HIS SPACEX ROCKETS | Jay Leno’s Garage Full Episode. Directed by: Marcia Xinatris. Produced by: Marcia Xinatris. Youtube. 23 de set. de 2022. Duration: 44’26’’. Available at: <https://www.youtube.com/watch?v=goT5gW57Chc&t=329s> Access on September 28th, 2022.

 

[2] MUSK, Elon. All Our Patent Are Belong To You. Published on July 12th, 2014. Available at: <https://www.tesla.com/blog/all-our-patent-are-belong-you> . Access on September 28th, 2022. 

 

[3] Patent Pledge. In Additional Resources. Published on November 7, 2014. Available at: <https://www.tesla.com/legal/additional-resources#open-source>. Access on: September 28th, 2022.

 

[4] Patents. In. Wipo.int. Disponível em: < https://www.wipo.int/patents/en/>. Access on: September 28th, 2022.

 

[5] To look for more information regarding the countries that contract under the Paris Convention, which rules over industrial property in the widest sense, including patents, trademarks, industrial designs, utility models, service marks, trade names, geographical indications and the repression of unfair competition. Click here: https://www.wipo.int/export/sites/www/treaties/en/docs/pdf/paris.pdf

 

[6] Instituto Nacional da Propriedade Industrial (Brasil).  Patente: da importância e sua proteção: patente de invenção e modelo de utilidade. / Instituto Nacional da Propriedade Industrial; organização: Elizabeth Ferreira da Silva; autores: Elizabeth Ferreira da Silva [et al.]; revisão: Sérgio Bernardo. Rio de Janeiro: INPI, 2021. In free translation: “A patente outorgada pelo estado tem como condição a descrição do invento para que um técnico possa reproduzir a tecnologia ao término da vigência da proteção. A exclusividade do mercado, durante o tempo da vigência, empodera o titular da patente na comercialização do invento e no controle do mercado, de acordo com as suas estratégias. Portanto, o conhecimento tecnológico protegido é passível de troca entre os agentes econômicos. A proteção agrega valor ao estabelecer a exclusividade temporária sobre o conhecimento, impondo limite a sua comercialização, concedendo lhe valor de troca e solicitação de autorização prévia para fins comerciais, apoiados numa relação contratual entre as partes da contratação. Portanto, o contrato é o instrumento para o estabelecimento das condições da exploração do conhecimento protegido. Quando a proteção termina, a informação já revelada, retorna ao domínio público, ou seja, ao acesso de todos à comercialização, sem que seja necessária autorização prévia. O domínio público disponibiliza a sociedade o conhecimento para produção, comercialização e o ingresso de outros agentes econômicos no mercado, o que aumenta à concorrência e dinamiza o ambiente econômico, contribuindo para o crescimento econômico e a geração de empregos.”

 

[7] Instituto Nacional da Propriedade Industrial (Brasil).  Patente: da importância e sua proteção: patente de invenção e modelo de utilidade. / Instituto Nacional da Propriedade Industrial; organização: Elizabeth Ferreira da Silva; autores: Elizabeth Ferreira da Silva [et al.]; revisão: Sérgio Bernardo. Rio de Janeiro: INPI, 2021. “O sistema de patente exige a descrição da invenção de forma a permitir a reprodução do invento tecnológico contribuindo para o aumento do nível do estoque de conhecimento à sociedade, evitando retrabalho e custos associados ao que já foi revelado. Portanto, a busca do conhecimento tecnológico na base de dados de patentes permite acompanhar a evolução tecnológica até as tecnologias mais pioneiras, na fronteira do conhecimento. Como o conhecimento é tornado público, pela publicação do conteúdo depositado nas bases dos Escritórios nacionais ou regionais de depósito, as comunidades acadêmicas- científica e empresarial se beneficiam do conhecimento revelado para promover o avanço das pesquisas e desenvolvimentos na geração de novos conhecimentos, a partir do que há de mais pioneiro no estado da técnica. Portanto, para fins de pesquisa o conhecimento protegido não impede o avanço científico e tecnológico.”

 

[8] Furthermore, alongside Elon’s opinion, in 2021 an article was published on the Harvard Business Review  exploring ownership engineering strategies, which includes three market approaches: (i) Tolerating Theft (achieve consumers through aspiration and taste); (ii) forgoing ownership (“Being first is often reward enough, even without any additional ownership incentives”); and (iii) leaning into ambiguity (“It’s better to ask for forgiveness, than permission.”). Even though these are strategies followed by big companies as SpaceX, Microsoft and HBO, most inventions depend on a patent’s protection as they are part of a production process, for instance technologies related to sustainable agriculture, since this type of technology affects the final value of the product, but not the product itself. (HELLER, Michael. SALZMAN, James. Elon Musk Doesn’t Care About Patents. Should you? In. Harvard Business Review. Published on March 04th, 2021. Available at: < https://hbr.org/2021/03/elon-musk-doesnt-care-about-patents-should-you>. Access on: September 29, 2022.)

 

VEJA, Nicolas. Elon Musk says ‘patents are for the weak’ as he talks Starship rocket, tours SpaceX Starbase with Jay Leno. In CNBC MAKE IT. Available at:<https://www.cnbc.com/2022/09/21/why-elon-musk-says-patents-are-for-the-weak.html> Access on September 29, 2022.

FERREIRA, Ademir Antônio. GUIMARÃES, Edilson Rodrigues. CONTADOR, José Celso. Patente como Patente como instrumento competitivo e como fonte de informação tecnológica. Gest. Prod., São Carlos, v. 16, n. 2, p. 209-221, abr.-jun. 2009.

 

—

“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 PTO (INPI) searches for potential providers of Anteriority Search services for the purpose of examining patent applications

Brazilian PTO (INPI) searches for potential providers

In its 2021 Action Plan, the Brazilian PTO took as a strategic initiative the pilot project to outsource the anteriorities search, with the justification that this activity, like the model used by the Japanese Patent Office (JPO, for its acronym in English), represents an alternative management tool for controlling the capacity for technical examination of patents, in search of high efficiency in granting rights and maintaining a high level of quality.

 

The pilot project was carried out as a research project, within the scope of the Industrial Property Development Program (PDPI), and consisted of internally simulating the provision of the search outsourcing service, inspired by the Japanese model, with application and testing according to the proposed procedures for execution, monitoring, evaluation and use of the simulated service.

 

Therefore, the Brazilian PTO began to research potential companies that provide a anteriority Search service for the purpose of examining patent applications. 

 

Brazilian PTO (INPI) searches for potential providers

 

Companies that express interest in participating will receive a survey questionnaire. The invitation is intended for companies that: (i) Have expertise in performing searches for state-of-the-art documents, having previously carried out similar activity; (ii)

Have no impediment in contracting with the Public Administration; (iii) Are not technology developers, applicants or holders of patent rights; and (iv) Do not carry out activities of representation of applicants or holders of patent rights.

 

With the respective measure, the Brazilian PTO  wants to verify the existence of companies capable of offering services for patents anteriority searching, in order to assess the feasibility, opportunity or relevance of this type of service provision.

 

—

Author: Bruno Arminio, Associate Lawyer at Peduti Advogados.

Source: Braziian PTO (INPI) invites companies for research on the provision of Patents Anteriority Search Service

—

“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 highly renowned trademark

INTELLECTUAL PROPERTY RIGHTS IN BRAZIL JUDGMENT ABOUT HIGHLY RENOWNED TRADEMARK

In a recent judgment, the 3rd Panel of the Superior Court of Justice (STJ) has positioned itself in the sense that the famous brand without a high reputation does not prevent registration in a different segment based on protection against dilution.

The decision was rendered in reason of the special appeal filed against the decision of the Regional Federal Court of the 2nd Region, which dismissed the appeal filed in the course of action for nullity of an administrative act that rejected the registration request filed on 02/06/1996 to identify clothing and clothing accessories in common use.

The controversy revolved around the need to verify whether the owner of a famous trademark, which does not enjoy high-reputation status, is entitled to protection against dilution.

The appellants alleged, in addition to the jurisprudential agreement, the violation of article 125 of the Brazilian Industrial Property Law (Law nº. 9.279, of May 14, 1996), according to which it guaranteed to brands considered of high repute special protection in all fields of activity, that is, rejecting the application of the principle of specialty.

The Judging Panel considers the fact that at the time the appellants’ trademark was filed, 1996, the defendant had not yet achieved the status of high reputation for its brand, therefore, the recognition of high reputation would not retroact.

The judgment also highlighted that in the case there is no bad faith on the part of the appellants, considering that the brand “Perdigão” has been using for more than 30 years to designate shoes manufactured in the city of Perdigão, in the state of Minas Gerais.

 

INTELLECTUAL PROPERTY RIGHTS IN BRAZIL JUDGMENT ABOUT HIGHLY RENOWNED TRADEMARK

 

Developments in the local court and instance of origin

In the first instance the action was filed by an individual businessman and a shoe manufacturer and trader – which have operated since 1993 – against the Brazilian Patent and Trademark Office (BPTO) and an important agribusiness company, with the aim of decreeing the nullity of the administrative act that rejected the registration application No. 819.164.119 for the mixed brand PERDIGÃO, in the former class 25:10, filed on June 1996.

The beginning of the authors’ activities took place in the municipality named PERDIGÃO, located in the State of Minas Gerais, and the authors managed to prove that they have used the sign PERDIGÃO as a brand to identify shoes since 1990.

The lower court handed down a judgment that dismissed the action as it understood that the INPI acted correctly in rejecting the trademark and that the case would fall under the modality of dilution called “obfuscation”, considering that, in fact, the use of the term PERDIGÃO to identify products from different sources, even if belonging to different market segments, could violate the material integrity of the consolidated brand, and widely known to the Defendant, especially if considering the degrees of distinctiveness and notoriety of its PERDIGÃO brand.

The Plaintiffs’ appeal had no effect before the Court, which dismissed the appeal and upheld the sentence immaculate, which triggered the filing of the special appeal at the Superior Court of Justice.

Upcoming developments 

After the publication of the judgment, the company filed Motions for Clarification in order to provoke the Court’s debate on whether or not PERDIGÃO was a high renowned brand when examining the application for registration for the trademark by the INPI, under the argument that it was not. had the opportunity to prove that its brand had high reputed status as early as 1996, adding that the high reputed declaration was only regulated in 2004, by INPI resolution 110/04 which regulated the application of article 125 of the LPI.

The Motions for Clarification still demand judgment by the Third Panel of the Superior Court of Justice.

—

Author: Sheila de Souza Rodrigues, Associate Lawyer at Peduti Advogados.

Source: Marca famosa sem alto renome não impede registro em segmento distinto com base na proteção contra diluição (Famous brand without a high reputation does not prevent registration in a distinct segment based on protection against dilution)

—

“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.”