In Brazil, as in other countries, it is possible to request the judge to grant a preliminary injunction in order to prevent the infringer of intellectual property rights from continuing to use them during the lawsuit.
The Brazilian Industrial Property Law and the Brazilian Civil Procedure Law defines two objective criteria that authorizes the judge to adopt this measure, which are the probability of the right (fumus boni iuris) and the danger of damage or risk to the useful result of the process (periculum in mora).
The probability of the right, in general, refers to the strength of the right raised by the plaintiff. If it is possible to demonstrate ownership of the violated rights, the actual occurrence of the violation and that the use of the trademark or patent is easily verifiable, the requirement of the probability of the right will be fulfilled.
Regarding the danger of damage or the risk to the useful result of the process, the plaintiff must prove that the continuation of the violation during the lawsuit may cause damage that is difficult or impossible to repair.
Such damages may be moral or material, like the wear and tear of the trademark in the market, the diversion of customers, the decrease in revenue or the increase in the offender’s assets for committing the violation.
On the other hand, it must be demonstrated that the failure to grant an injunction may render the process ineffective in its closure. In other words, it is necessary to prove that if the injunction isn´t granted, the plaintiff’s right will be lost until the effective resolution of the lawsuit.
Considering it is a drastic measure that can destroy the defendant’s business, it is natural for judges and courts to adopt a cautious stance when deciding on such requests.
In this sense, it is also relevant to demonstrate to the judge that the granting of the injunction will not lead to the end of the defendant’s business, leading to bankruptcy and causing indirect impacts on the economy, with the unemployment of employees of the alleged perpetrator.
In case a preliminary injunction is granted, but at the end of the lawsuit it is found that the plaintiff’s rights have not been violated, the Brazilian Civil Procedure Code provides the possibility of the plaintiff being sentenced to repair the damages caused to the defendant by asking for the preliminary injunction, which is an effective mechanism to guarantee the restoration of any damages that may arise from an unfair injunction.
In conclusion, as in other legal systems around the world, Brazilian legislation has measures to provide, thru a lawsuit, immediate order to cease the violation of immaterial rights, preserving the plaintiff’s rights.
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Author: Carlos Eduardo Nelli Principe, 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.”
