SOERENSEN GARCIA ADVOGADOS ASSOCIADOS The BRICS Economies - Brazil Brazils Economy and Intellectual...

SOERENSEN GARCIA ADVOGADOS ASSOCIADOS

The BRICS Economies - Brazil

Brazil’s Economy and Intellectual Property Law


Numbers• 5th largest country: 8.514.877 km²

• 5th largest population: 190.732.694 est.

• 7th GDP: US$ 2.090 trillion est.– Largest economy of Latin America

NortheastNorth

Southeast

South

Central-West


Geography and Climate• World’s largest fresh water reserve• World’s largest biological diversity• World’s largest rainforest: Amazon• Climate: mainly tropical


Industry and agriculture• Main products: coffee, soybean, iron ore,

steel, ethanol, automobiles, aircrafts, oil

• Energy: mainly hydroelectric

• Most advanced industry in Latin America


Commerce• Exports: US$ 201,9 billions (2010)

• Imports: US$ 181,6 billions (2010)

• Main partners: China, United States and Germany.


Business and Financial Market• Distinction in the commodities market• Largest companies: Petrobras (oil and gas), Bradesco (banking), Vale (mining) and Itaú (banking)

• BM&FBovespa: São Paulo Stock Exchange


Tourism• 5,16 millions visitors (2010)

• Turism income: US$ 5,9 billions (2010)

• Most visited cities: Rio de Janeiro, Foz do Iguaçu, São Paulo, Florianópolis, Salvador and Balneário Camboriú.


Social aspects• HDI: 0.699 (2010) – new methodology• Wealth concentration

• Federal initiative: Fome Zero - Zero Hunger

• Public health and education deficiencies


Politics• Federal Republic of Brazil

• Bicameral National Congress

• Multipartidarism

• 1988 Constitution: institutional stability

• Elections: electronic vote legitimacy


Foreign Policy and Affairs• Integration of Latin America

• Pursue a UN Security Council permanent chair

• Multilateral diplomacy

• Leadership among developing countries


Law• Roman-Germanic tradition: civil law

• Senators, deputies and city councilors

• Constitutional jurisdiction: Federal Supreme Court


Intellectual Property• Brazilian patents: under TRIPs

• Signatory of the PCT – Patent Cooperation Treaty

• Trademarks: first to file system


Intellectual Property• The Madrid Protocol

• Non-traditional trademarks

• Trade dress

• Comparative advertising


Health Authorities – ANVISA• Foods

• Pharmacies and authorization

• Cosmetics

• Health Surveillance


Special bill of review No. 1.174.098.

Decision of August 4, 2011. -Special bill of review No. 1.174.098. Decision of August 4, 2011. -ALUMEX INDÚSTRIA E COMÉRCIO LTDA. vs ALCICLA INDÚSTRIA E COMÉRCIO S/A.-The Superior Court confirmed the understanding that the compensation for the undue use of a mark, when likely to cause confusion between the companies and consequently divert the clientele, does not depend on evidences of the material damages in concrete. The damages are presumed. According to the Ministers, however, the same would not apply to moral damages which must be proven.


Special Bill of Review No. 1.105.422 – MG (2008/0261426-3) of May 10, 2011. Part 1

-Aché Laboratórios Farmacêuticos S/A vs Pharmascience Laboratórios Ltda. Sorin vs. Sorinan.

-Sorin vs. Sorinan.

-The State Courts of MG understood that the prefix “SOR” was of common use for SORO (which means saline solution for nasal wash).


Special Bill of Review No. 1.105.422 – MG (2008/0261426-3) of May 10, 2011. Part 2

-The Appellate Board decided that the use of similar pharmaceutical trademarks, when composed by the radical that indicates the raw material, would not constitute unfair competition.

-During the course of the law suit the Brazilian Trademark Office granted the trademark SORINAN, which is being questioned administratively.


Law suit no. 2004.51.01.513107-8- Federal Court of the 2nd Region – Rio de Janeiro.

Appellant: Comércio de Cosméticos Guanza Ltda.

Appellee: Unilever Brasil Ltda.

- If the use of Ebony isn’t invoking a special quality of the product, nothing is, which would be the same as considering that there is no relation between race and color, an absolute untruth.


Appeal no. 70025756552- Rio Grande do Sul State Court – Porto Alegre. Appellant: Nestlé Brasil Ltda.

Appellee: Eleva Alimentos S.A.

- It is not acceptable the Defendant’s trade-dress just because there were other similar packages in the market.

- “The compensatory damages must be evaluated considering the Defendant’s profit with the sales of its counterfeited product, since its awareness of the counterfeiting practice.”


Law suit no. 024.03.017452-8- Espírito Santo State Court – Vitória.

Plaintiff: Allergan, Inc.

Defendant: Adcos Indústria e Comércio Ltda.

- “Examining the words ‘BOTOX’ and ‘BOTODERM’, it is clear that there is no resemblance between them, but they just present the common prefix ‘BOTO’.”

- “Examining the expression ‘BOTOX-LIKE’, it is disclosed that (…) the expression is merely a reproduction of the Plaintiff’s trademark, with a visually perceptive increment.”


Thank you

Mario Soerensen [email protected]

www.soerensengarcia.com.br

SOERENSEN GARCIA ADVOGADOS ASSOCIADOS The BRICS Economies - Brazil Brazils Economy and Intellectual...

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