Brazilian PTO publishes Technological Radar on fertilizers

The Brazilian PTO published, in January 2023, the Technological Radar of Fertilizers, drafted within the scope of the National Fertilizer Plan (PNF), developed by the Interministerial Working Group established by Decree No. 10.605/2021, with the aim of strengthening policies to increase competitiveness in the production and distribution of fertilizers in Brazil, in a sustainable manner.

 

It is very important to highlight that the Technological Radar it is always drafted by the Division of Studies and Projects of the Brazilian PTO, that analyses the technological information contained in patent documents. The radars focus on the analysis of technologies/sectors listed as priorities by the Brazilian Government and/or partner institutions. Its scope is to present the technological development in Brazil and in the world through the analysis of the patent documents of the technological sector.

 

 

The National Fertilizer Plan (PNF) activity plan was divided into two stages: 1) International Benchmarking and 2) Diagnosis of the production chain in Brazil, comprising themes divided into six lines of action: Nitrogen; Phosphor; Potassium; Emerging Chains; Science, Technology and Innovation; and Environmental Sustainability.

 

In this context, the Brazlian PTO was responsible for conducting studies on technological patent information bases on the fertilizer production chain, more specifically for the Nitrogen, Phosphorus and Potassium (NPK) chains.

 

Starting from a sample of 174,000 fertilizer patent documents, two specific types of analysis were performed for fertilizers. With this worldwide analysis, it was possible to present an overview of the state of the art of the technologies in question, showing the volume of inventions on a global level and the main applicants, which reflect the most prominent actors in research and development in the area.

 

In the national diagnosis, the analysis of patent applications filed in Brazil showed interest in the Brazilian market, as well as technologies with potential use in the country. The study also analyzed the patent applications filed by residents in Brazil, with the aim of identifying the profile of technologies under development in the country and who has the skills to generate innovation in the sector.

 

The entire content of the study in question can be easily accessed through the federal government website, in the corresponding link.

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Author: Bruno Arminio, and Cesar Peduti Filho, Peduti Advogados.

Source: INPI divulga Radar Tecnológico sobre fertilizantes;

INPI divulga Radar Tecnológico sobre fertilizantes

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The use of social media as a dangerous tool for collecting personal data

In the world we live in today, it seems practically impossible to keep up to date and relate to the people around you without providing personal data on online platforms such as social media. This becomes a major alert, especially for the way data is exposed, daily, on worldwide known and used platforms.

 

Given this scenario, a research called “Hacker Hotspots: The Apps Most Vulnerable to Cybercrime” carried out by TechShielder showed that 80% of the most popular apps collect data from messages of their users. The research also exposed the apps most likely to be hacked, so Facebook occupied the first position, followed by Instagram, and WhatsApp in third.

 

The way in which the data is exposed is a reflection, above all, of the speed of response that everyday situations require, as well as the way in which certain companies make it difficult to understand how they deal with their users’ personal data.

 

 

According to the research above, basic user information such as phone numbers and email addresses is accumulated, as well as confidential information through the use of cookies, technology that allows the installation of files on a user’s device, collecting certain information, including personal data.

 

The most important thing, however, is to understand that the culture of personal data protection is spreading, albeit slowly, helping everyone to be aware of their rights as citizens who own their personal data. In that regard, the Brazilian National Data Protection Authority (“ANPD”) recently launched, in accordance with the Brazilian General Personal Data Protection Law (“LGPD”), an orientation guide on the use of cookies and personal data protection. The document’s primary objective is to guide on good practices in the use of cookies, thus providing greater transparency for the website and/or application user.

 

For more information on how to keep your company in compliance with the LGPD, contact Peduti Advogados.

 

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Author: Caroline Muniz, Junior Associate at Peduti Advogados

Source: Report: 80% of popular mobile apps collect data on your messages; Hacker Hotspots: The Apps Most Vulnerable to Cybercrime; ANPD lança guia orientativo “Cookies e Proteção de Dados Pessoais”.

 

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The importance of security measures and the personal data protection in maintaining business

Data leaks, phishing, ransomware, viruses, among other terms, have become recurrent and much talked about in recent years. With the entry into force of the recent Brazilian General Personal Data Protection Law (Law No. 13.709/2018), also called “LGPD”, on September 18 of 2020, attention is focused mainly on the data of individuals and the incidents that may occur involving these data.

 

There is no precise definition in Brazilian law on what would specifically be a personal data breach. Despite this, there is a great influence of international data protection law, mainly from the European Union. According to article 4 of the General Data Protection Regulation, such a breach can be understood as a “a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed”.

 

As an example, malware can be cited, which is a malicious program, ransomware being one of the best known. It can be understood as a malicious code to hijack data – after infecting a computer, access to a company’s files can be blocked, for example, in order to demand a ransom to release this access. The theme generates great concern because as exposed by “Jornal Hoje”, in the case of the city of São Paulo, cybercrimes recorded in six months of this year exceeded the total of last year. Furthermore, studies revealed that 54% of global organizations assessed admitted that their methods of assessing cyber risks are not sufficiently sophisticated, leaving them vulnerable to potential threats.

 

 

With an essentially preventive character, the LGPD determines that “the processing agents shall adopt security, technical and administrative measures that are capable of protecting personal data from unauthorized access and accidental or unlawful situations of destruction, loss, modification, communication or any other form of inappropriate or unlawful processing.” (Article 46, LGPD). It is therefore understood the importance of implementing security measures by those responsible for processing personal data. The consequences of underestimating the relevance of these measures can be extremely harmful to a company’s business and can result in financial and reputational losses. The security measures will, above all, help in business continuity, that is, not allow its unplanned interruption or, even, ensure its resumption in a timely manner, if necessary.

 

Finally, it should be noted that those responsible for the processing of personal data undertake to guarantee the information security provided for by the LGPD in relation to personal data, so that if the law is not complied with, such agents are liable to suffer administrative sanctions by the Brazilian National Data Protection Authority (“ANPD”), including a fine of up to 50 million reais.

 

For more information on how to keep your company in compliance with the LGPD, contact Peduti Advogados.

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Author: Caroline Muniz, Junior Associate at Peduti Advogados.

Source: Mais da metade das empresas globais enfrentam exposição ao risco cibernético; Why global organisations are struggling to manage cyber risk; Artigo; GDPR.

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Intellectual property enforcement policy: what is it and its importance

intellectual property

Protection and enforcement of intellectual property rights (IPR) is a set of legal tools made available by the legal system. IPR’s sole purpose is to provide effective judicial protection and solve trademark conflicts. Trademark enforcement tools are divided into three different types, which are: infringement actions, nullity proceedings, and extrajudicial resolutions. 

Trademark infringement actions include indemnification and inhibitory clauses. It usually entails an injunction directing the infringer to stop using the trademark material; redress claim for material damage, given the reduced value of a business’ brand and the negative impact on its sales; and claim of indemnity for moral damage, which are presumed once a trademark infringement is proven, categorizing what is called moral damage in re ipsa (REsp 1.327.773 – MG, STJ 4ª Turma, Rel Min. Luís Felipe Salomão, j. 02/15/2018).

 

intellectual property

 

The trademark and the alleged “inhibitor” are then analyzed using a certain criteria to identify the likelihood of confusion.  

The procedure of nullity or revocation of a trademark is discussed according to the brand validity pertaining to the legal requirements included in the Law of Industrial Property. As a declaratory judgment, it refers to a proceeding which seeks the nullity of the administrative decision that confirmed the trademark, written by the competent autarchy, the INPI – Instituto Nacional da Propriedade Industrial. 

In addition to the harmonization capability of the nullity proceedings, which determines if the brand meets the trademark registration requirements, they also act as procedural defense against the “inhibitor.” The respondent may try to avoid being convicted for material and moral damage through the trademark revocation that it  is actively violating. 

Extrajudicial resolutions, in turn, legitimize the use of the trademark policies enforcement since they strive for an amicable resolution before the trademark petition is filed. They also serve as a procedural advantage should the other party come forward with one of its defense arguments.

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Author: Enzo Toyoda Coppola, Junior Associate at Peduti Advogados.

Source: https://esaj.tjsp.jus.br/cjsg/consultaCompleta.do?gateway=true

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Post Sale Confusion

Post Sale Confusion

As it is known, among the most important financial assets of a company are the intangible assets (e.g. brands and patents). Brands, on the one hand, have numerous functions of great importance in market society. It has distinctive functions: it designates certain products on the market before others; It serves as an investment protector, because, when a relationship is established between a product and its producer, the brand relates this recognition to its product success; It also increases competition and acts as a means of communication between the merchant and the public. 

 

Genericide and consumer confusion phenomenons have negative effects on these important functions listed above. The first phenomenon, which happens when brand names are used as generic terms, hinder the brand from exercising its distinctive features and investment protection. The latter is a direct threat to merchant investment since demand is diverted, contributing in some cases to loss of brand distinctiveness. 

In addition to the known consumer confusion types that may occur, defined by case-law and legal writings, there is an unusual category, which has different causes and consequences, called “post sale confusion.” 

 

Post Sale Confusion

 

Under this category, which happens frequently in the luxury market, the buyer knows exactly the origin of a certain product; the confusion happens among third parties. It is called “post sale” because the purchase is made consciously, and, once it happens, the product circulation and utilization are similar to those of famous brands, turning exclusive features into something common. 

 

The practice of selling luxury products with similar features to others is not capable – and does not intend – to mislead the consumer. However, it can diminish brand value, through the blurring or tarnishment of the famous brand, because it allows other companies to deliver items with the same design/features for a fraction of the price, depleting brand exclusivity and lessening demand.  

 

It was recognized by the Court of Justice of Sao Paulo as follows: INDUSTRIAL PROPERTY, IMPROPER REPRODUCTION OF INDUSTRIAL DESIGN. MOTORCYCLES, UNFAIR COMPETITION, INDEMNITY FOR MORAL AND MATERIAL DAMAGES, PROHIBITORY INJUNCTIONS. (…) The defendants argued that there was no reproduction of the plaintiff’s industrial design, as the model follows a “market trend” and, because of that there are visual similaritites. (…) Therefore, there was no excuse for the defendants to reproduct the trade-dress of your products based on those initially manufactured by the plantiffs, inexisting said “market trend”. (…) Is that the trademarks’s design was put in not adequate enviroment for it’s owner desired and practiced standard, devaluating the sign in front of the consumers. (Apelação Cível nº 0068141-85.2012.8.26.0100, Relator Carlos Alberto Garbi, São Paulo, 2ª Câmara Reservada de Direito Empresarial, julgado em 31/10/2016, publicado em 03/11/2016)

 

Therefore, is not about the buyer’s effective confusion, with potential to directly divert the costumer, but of posterior association by the public that has not yet adquired the product.

 

Is this case, the effect is the very loss of the trademark’s distinctiveness, as the unique feature of the product comes to caracterize a product segment instead of the specific product of an specific manufacturer, as a “market trend”. This hypothesis of confusion, even though indirect, can generate financial liability to the manufacturer that intends to “take a ride” in the appreciation and prestige adquired by a third parties’s trademark.

 

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Author: Enzo Toyoda Coppola, Junior Associate at Peduti Advogados.

Source: Apelação Cível nº 0068141-85.2012.8.26.0100, Relator Carlos Alberto Garbi, São Paulo, 2ª Câmara Reservada de Direito Empresarial, julgado em 31/10/2016, publicado em 03/11/2016

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Is a trademark coexistence agreement accepted in Brazil by the Brazilian Trademark Office?

Is a trademark coexistence agreement accepted in Brazil by the Brazilian Trademark Office?

When clients have a trademark rejected in Brazil or opposed by third parties, it is common to be questioned about the possibility to celebrate a coexistence agreement to overcome the rejection. 

We know that in certain jurisdictions the signature of a coexistence agreement allows the trademark granting. In Brazil, it is not always true.

In accordance with the Brazilian Trademark Office opinion and resolutions, a coexistence agreement will be used as an additional document to be considered to issue a decision regarding the trademark registrability. However, this is not the main point analyzed.  

The coexistence agreement is accepted to verify if the document is enough to prevent the consumers confusion related to the third-party trademark registered. If the examiners understand that the confusion between the trademarks will remain, even with the agreement, the trademark will be rejected, and the document will not be considered. 

 

Is a trademark coexistence agreement accepted in Brazil by the Brazilian Trademark Office?

 

If the examiner understands that the exclusion of an item of the list of goods/services will allow the coexistence between the trademarks, an office action can be issued and, if the owner agrees with the deletion, the trademark will be granted. 

However, if the trademark and the goods/services are too similar, the Brazilian Trademark Office will not consider the coexistence agreement and the trademark filed later will be rejected.

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Author: Laila Reis Araujo, Senior Associate & Head of The International Department at Peduti Advogados.

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Administrative nullity proceedings of trademark in Brazil

Administrative nullity proceedings of trademark in Brazil

When a trademark of a third party is granted, and contrary to the Brazilian law you can file an administrative nullity request.

This procedure is the second opportunity to attack by the administrative procedure. If you file an administrative nullity request but even so the registration was maintained, the next step will be to file a judicial nullity proceeding.

Some of the arguments to request an administrative invalidation proceeding are:

  • Reproduction of the prior registration for trademark;
  • Reproduction of a business name;
  • The right of preference;
  • Possibility of confusion between the trademarks or undue association.

 

Administrative nullity proceedings of trademark in Brazil

 

This is just some examples but there are more possibilities of arguments.

The administrative nullity proceedings against third parties’ registrations may be requested by any person with legitimate interest, within a period of 180 days of the issue date of trademark registration is granted.

The nullity of a registration may be total or partial. And the declaration of nullity shall take effect from the filing date of the application.

For more information or advice about the trademark protection, send us a message.

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Author: Luciana Santos Fernandes, Associate Lawyer at Peduti Advogados.

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The creation of repositories as way to ensure the protection of Traditional Cultural Expressions

The creation of repositories as way to ensure the protection of Traditional Cultural Expressions

Traditional Cultural Expressions are formed by the set of creations of the people from certain region. Also known as Folklore Expressions, such creations represent a large part of the intangible heritage of a country, playing a very important role in the knowledge of local culture and history.

The Traditional Cultural Expressions embraces the creations of art, dance, symbols, crafts, architecture, among others, and can be fundamental for getting to know a certain people and even understand their knowledge of medicine and science. 

Although they are clearly creations of the spirit, and therefore, can be considered works of art, as provided in the “caput” of Article 7 of the Brazilian Copyright Law (Law No. 9.610/98), Traditional Cultural Expressions cannot be protected by the Copyright institute, since they lack a necessary condition: the determination of who effectively was the author of the work.

Since these are folkloric and cultural creations, which go through generations and generations, it is impossible to credit the authorship of a Traditional Cultural Expression to a single person, since such immaterial property knowledge belongs to a whole collectivity. Thus, there is no intellectual property right that confers ownership and exclusive control over the exploitation of these creations.

The Federal Constitution, in its articles 215 and 216, guarantees the exercise of cultural rights and classifies as Brazilian cultural heritage all the assets that identify our society. Moreover, the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage and the 2005 Convention On The Protection And Promotion Of The Diversity Of Cultural Expressions both published by the United Nations Educational, Scientific, and Cultural Organization – UNESCO reinforce that the  cultural diversity is essential, and determine that these forms of expression must be preserved, emphasizing the importance of the participation of the communities in the management and protection of these assets.

 

The creation of repositories as way to ensure the protection of Traditional Cultural Expressions

 

However, the protection of Traditional Cultural Expressions ends up being very broad and sometimes abstract, which does not mean that they can be freely exploited by the commercial industry, precisely because they are inalienable. For this reason the inclusion of these creations as mere Intellectual Property asset such as trademarks, patents, and copyrights does not provide the necessary protection, since such protection would end up transforming important culture assets into commodities.

The establishment of repositories to archive the spirit creations of native people turns out to be a good option to ensure the minimum protection to Traditional Cultural Expressions, since such repositories store information about which tribe is responsible for the creation of that cultural expression and keep the history behind that knowledge preserved.

Based on this example, the Insikiran Institute of Indigenous Higher Education, which is part of the structure of the Federal University of Roraima-UFRR recently opened a digital repository for indigenous scientific and ethnocultural productions. According to the UFRR “initiative will serve as a tool to protect, preserve, organize, publicize and disseminate the scientific and ethnocultural knowledge of the indigenous community of Roraima.”

This initiative demonstrates the participation of the community and the Goverment for the management and protection of the Brazilian intangible heritage, as determined by the Federal Constitution and the UNESCO Conventions, guaranteeing the support to the people who hold these rights.

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Author: Joana Mendes Maneschy, at Peduti Advogados.

Source: UFRR inaugura repositório digital para produções científicas e etnoculturais indígenas; WIPO. Traditional Cultural Expressions (Folklore); BRASIL. Constituição (1988). Constituição da República Federativa do Brasil. Brasília, DF: Senado Federal: Centro Gráfico, 1988; CONVENÇÃO PARA A SALVAGUARDA DO PATRIMÔNIO CULTURAL IMATERIAL – 03 de novembro de 2003 – PARIS; CONVENÇÃO SOBRE A PROTEÇÃO E PROMOÇÃO DA DIVERSIDADE DAS EXPRESSÕES CULTURAIS – 21 de outubro de 2005 – Texto oficial ratificado pelo Brasil por meio do Decreto Legislativo 485/2006. 

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TM exclusive rights of use: exceptions according to Brazillian law

TM exclusive rights of use: exceptions according to Brazillian law

As we know, the biggest advantage to obtain a trademark is the exclusive right of its use to identify services and/or goods as spcified by the respective register. Even thought, it isn’t an absolut right and may be flexibilized depending of some specifique situations previowsly indicated in brazillian law.
Some of them are preserved by article 132 of brazillian industrial property law, which says:

 

1 – Distribution Agreements

A trademark owner won’t have the right to prevent distributor to use it’s trademarks, since this use is related to the promotion and/or sales of trademark owner goods itself.

 

2 – Free Circulation of Goods

A trademark owner won’t have the right to prevent the free offer of a product placed on the internal market, by itself or by others with its consent, except as provided in cases of abuse of rights.

 

TM exclusive rights of use: exceptions according to Brazillian law

 

3 – Accessories Manufacturer

A trademark owner won’t have the right to prevent accessories manufacturer of its goods, to use the trademark to identify the destination of this manufactered accessories.

 

4 – Non Commercial Use

A trademark owner won’t have the right to prevent the citation of its trademark in speech, scientific or literary work or any other publication, provided that it has no commercial connotation and without prejudice to its distinctive character.

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Author: Lorena Garrido Borges, Senior Associate at Peduti Advogados.

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The recognition of mastic honey from the north of Minas Gerais as a Geographical Indication Registration

The recognition of mastic honey from the north of Minas Gerais 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 honey from the mastic tree in the North of Minas Gerais. Now, the region is now identified as a Denomination of Origin for the product, which, in practice, represents the geographical indication of the particular environmental and geographical conditions of soil and climate for the production of honey with its own characteristics. This was the first recognition approved by the Brazilian PTO in 2022, published in the Official Gazette No. 2665.

 

The recognition of mastic honey from the north of Minas Gerais as a Geographical Indication Registration

 

As described, the denomination of origin establishes an area of 64 municipalities with different soil and climate conditions, as well as vegetation and insect producers. The presence of aroeira-do-sertão stands out and its interspecific relationships, in addition to the technique used by regional beekeepers. The Brazilian PTO decision is seen as a decisive milestone in the scientific chain of honey in the North of Minas Gerais, reaching one of the most representative indicators for the production of excellence and certification for the international market.

In view of the above scenario, what would be the advantage of a Denomination of origin in Brazil?

For a given product to obtain recognition as a Denomination of Origin, it must take into account the unique characteristics of the location, including the natural and human factors that make it different. In this way, the protagonism belongs to the producer, as he has the intellectual property of the way of doing it. Thus, the registration of Geographical Indication of Agricultural products, in fact, can bring recognition by the market and by consumers.

In this way, producers who follow the rules of the geographical indication from North of Minas Gerais can choose to also use the Brazilian Seal of the Denomination of Origin on the label of their products, together with the name of the G.I. and consequently, from this measure, it is expected that the valorization and even the international promotion of products, adding value and generating income, in addition to other benefits for the specific region, which ends up becoming a highlight and a market reference.

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Author: Bruno Arminio, Associate Lawyer at Peduti Advogados.

Source: Manual de Marcas; INPI reconhece o registro de indicação geográfica do mel de aroeira do Norte de Minas; Mel de Aroeira do Norte de Minas recebe selo de Indicação Geográfica

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