The 1st Reserved Chamber of Business Law of the São Paulo Court of Justice (TJ-SP) dismissed the appeal brought by one company of the Apparel Industry accused of copyright infringement.
Copyright infringement is a pinnacle problem in the fashion industry. It’s not new that the fashion design sector suffers with unfair competition, but there are legal mechanisms to restrict this practice.
The lawsuit was filed by two related companies against one Brazilian luxury clothing brand.
The plaintiffs companies complained that they had clothes that were being imitated by the defendant company.
Although the plaintiffs companies do not have industrial design registrations of their creations, the following rule provided by TRIPS Agreement is applicable:
Article 25 Requirements for Protection:
“2. Each Member shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. Members shall be free to meet this obligation through industrial design law or through copyright law.”
In the first instance, the judge interpreted that the act of the Defendant was a practice of parasitic competition, taking benefit from the goodwill and reputation of a Brazilian luxury clothing brand.
On appeal, the defendant maintained that the similarities come only from the observance of global trends.
However, the Court maintained the sentence, based on the understanding that the rules of the article 195 of Brazilian Industrial Property Law (Law nº. 9.279, of May 14, 1996) can be applied to the case at hand.
According to the rule laid down in article 195, items IV and V, of the IP Law:
“A crime of unfair competition is committed by the one whom:
- uses another person’s advertising phrase or sign, or imitates it, in order to create confusion among the products or establishments
- uses, improperly, another person’s trade name, title of establishment, or insignia, or sells, displays, offers for sale, or has in stock a product bearing these references;”
On June 02, The Justice Court of São Paulo, in a unanimous decision, dismissed the Appeal filed by Defendant. The Court maintained the position of the first instance in the sense that the Defendant, when imitating garments, parasitically took advantage of the plaintiff’s brand.
The unlawful conduct practiced by the defendant allows the presumption of damage to the plaintiff’s morals due to the violation of the industrial property right.
The Defendant can still appeal the decision but, according to the understanding of the majority jurisprudence, the chances of success are reduced.
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Author: Sheila de Souza Rodrigues, 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.”