BRAZIL
BRAZIL
Copyright Zynga Inc v Vostu
Zynga filed a copyright infringement lawsuit against Vostu USA Inc, Vostu Ltd and Vostu Participações do Brasil Ltda. Te trial court judge issued a decision granting the preliminary injunction aſter finding a likelihood that Vostu’s games copy Zynga’s. Te judge stated that, even if third party games are also similar to Zynga’s and Vostu’s, this fact doesn’t exclude the alleged copyright violation. Using the concept of “look and feel” of non-necessary functional elements, the judge stated that infringement could be perceived simply by looking at the images without further technical analysis.
Village 284 v Hermès
Village 284 Participações e Comércio de Vestuário Ltda filed a lawsuit against Hermès Internacional, the owner of the famous handbag model Birkin, aiming at preventing any court action by Hermès for infringement of copyright.
On May 20, 2011, recognising that “the copyright is meant to increment the culture of knowledge, ensuring the owner of a work the exclusivity of the use thereof, with guarantee of return on his creation, as a means of encouraging new creations, producing more culture and knowledge”, Judge João Omar Marçura rejected the action filed by Village 284, and confirmed the preliminary injunction granted in Hermès’s counterclaim, ordering Village to abstain from producing, importing, exporting, having in stock and/or commercialising products which would violate Hermès’ copyrights on the Birkin handbag or any other of Hermès’ products, and which would also consist in unfair competition, under penalty of paying a daily fine of R$10,000 up to a limit of R$1 million. Village was further ordered to produce evidence of the number of infringing products made and sold within 30 days for calculation of material damages, to pay moral and material damages, and to publicise the decision in the press acknowledging the rights of Hermès.
Trademarks LG Informática v LG Electrics and LG Electronics
LG Informática Ltda, a small Brazilian soſtware company, filed a complaint before the Federal Court of Rio de Janeiro against Korean company LG Electrics Investment, its local subsidiary and the BPTO, aiming to invalidate the trademark LG issued on behalf of the Korean company for computer products, as well as enjoining both companies from using the trademark in this specific segment. Tough LG Informática Ltda’s trademark was issued before the Korean company was established in Brazil, the newcomer grew bigger and the public grew confused between LG Informática Ltda, seeing it as a company affiliated to the Korean LG.
62 World Intellectual Property Review e-Digest 2012
Otto Licks advises and practises trial and appellate litigation for information technology and life sciences clients. He focuses on the intersection of IP laws, due diligence, business transactions, government procurement and competition law, including data package exclusivity, regulatory compliance, misleading advertising, unfair competition and IP policy-making.
Te lawsuit combines elements typically present on reverse confusion claims. Te first instance decision was rendered in favour of the plaintiff for considering that confusion could arise from the use of trademark LG by the competitor. Tis decision was overruled by the appellate court because the companies did not act in the exact same field of activities and that the Korean trademark LG had become well-known in the country. LG Informática Ltda filed a writ of review to the Brazilian Superior Court of Justice, and the case will soon be analysed by that court.
Sindicato da Indústria de Produtos Farmacêuticos no Estado de São Paulo (Sindusfarma) v ANVISA
ANVISA had determined the prohibition of marketing and importation of vaccines identified by their trademarks. In light of that, Sindusfarma filed an administrative appeal before ANVISA, which was rejected. Given this scenario, Sindusfarma filed a lawsuit and a provisional measure seeking the invalidity of the decision.
In both cases the court’s decision was favourable to Sindusfarma, allowing Sindusfarma’s associates to proceed with the importation and the marketing of the immunologic product with its trademark. ANVISA appealed against both decisions and the appeal was partially granted. Te appellate court maintained the lower court decision and, in addition, stated that certain scientific information should be present in the products.
As ANVISA only filed a motion for clarification against the decision rendered by the appellate court in the lawsuit, Sindusfarma filed a brief in the provisional measure requesting the agency to comply with the decision, publishing in the Official Gazette a notice authorising the importation and marketing of vaccines by Sindusfarma’s associates.
Otto Licks is a founding partner of Leonardos & Licks Advogados. He can be contacted at:
otto.licks@
leonardoslicks.com
www.worldipreview.com
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