Abstract
This paper shows the Brazilian legal landscape for IPRs, with focus on scope of protection, geo-blocking and restriction of online sales. Limits to the rights of IP owners that affect control of distribution and post-sale experience, especially exhaustion of IPR, consumer protection and anti-trust law under Brazilian law are explored to conclude whether Brazil has stroke a fair balance between protection of IP rights, in special trademarks, and the rights of third parties.
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Notes
- 1.
Federal Act N. 9,279 of 16 May 1996.
- 2.
Federal Act N. 9.610 of 19 February 1998.
- 3.
Federal Act N. 9.609 of 19 February 1998.
- 4.
Emphasis added.
- 5.
Federal Act N. 8,078 of 11 September 1990.
- 6.
Article 6 – Brazilian Consumer Rights Code:
(...);
III - adequate and clear information on the different products and services, with a correct specification of quantity, characteristics, composition, quality, incidental taxes and price, as well as the risks they present;
Article 4. The National Consumer Relations Policy aims at meeting the needs of consumers, respecting their dignity, health and safety, protecting their economic interests, improving their quality of life, as well as transparency and harmony of consumer relations, following the following principles:
(...);
III - harmonization of the interests of participants in consumer relations and compatibility of consumer protection with the need for economic and technological development, in order to make feasible the principles on which the economic order is based (article 170 of the Federal Constitution), whenever based on good faith and balance in the relations between consumers and suppliers;
Article 51. The contractual clauses related to the supply of products and services that are:
(...);
IV - establish obligations considered unfair, abusive, placing the consumer at an unreasonable disadvantage, or incompatible with good faith or equity.
- 7.
Federal Act N. 12,965 of 23 April 2014.
- 8.
Article 7 Access to the internet is essential to the exercise of citizenship, and the user is guaranteed the following rights:
(...);
VII - failure to provide third parties with their personal data, including connection records, and access to Internet applications, except by free, express and informed consent or in the cases provided for by law;
VIII - clear and complete information on the collection, use, storage, treatment and protection of your personal data, which may only be used for purposes that:
-
(a)
justify their collection;
-
(b)
are not prohibited by law; and
-
(c)
are specified in service contracts or in terms of use of internet applications;
IX - express consent regarding the collection, use, storage and processing of personal data, which should occur in a prominent way of the other contractual clauses.
-
(a)
- 9.
Section I
Network Neutrality
Article 9. The person responsible for transmission, switching or routing has the duty to treat any data packet, regardless of content, origin and destination, service, terminal or application, in an isonomic manner.
(...)
Paragraph 2 In the event of discrimination or traffic degradation provided for in Paragraph 1, the person mentioned in the caput must:
(...);
II - act with proportionality, transparency and isonomy;
(...);
IV - offer services on non-discriminatory commercial conditions and refrain from conducting anti-competitive conduct.
- 10.
Federal Act N. 10.406 of 10 January 2002.
- 11.
Superior Court of Justice. Ruling on the Special Appeal N. 1200677 / CE.
- 12.
Superior Court of Justice. Ruling on the Special Appeal N. 1323401/RJ.
- 13.
São Paulo State Court of Appeals. Appeal N. 1000994-02.2014.8.26.0008. 30th Chamber of Private Rights, ruled on February 25, 2016. São Paulo State Court of Appeals. Appeal N. 1004663-73.2016.8.26.0564. 27th Chamber of Private Rights, ruled on October 18 2016.
- 14.
Federal Act N. 13,105 of 16 March 2015.
- 15.
Emphasis added.
- 16.
Superior Court of Justice: Special Appeal N. 609.047/SP, Special Appeal N. 930.491-SP.
- 17.
Federal Act N. 12.529, of 30 November 2011.
- 18.
Article 36. The acts which under any circumstance have as an objective or may have the following effects shall be considered violations to the economic order, regardless of fault, even if not achieved:
(…)
Section 3 The following acts, among others, to the extent to which they conform to the principles set forth in the caput of this article and its clauses, shall characterize violations of the economic order:
(…);
XIV - to monopolize or prevent the exploitation of industrial or intellectual property rights or technology; (…);
XIX - to abusively exercise or exploit intellectual or industrial property rights, technology or trademark.
- 19.
Administrative Procedure N. 08012.002673/2007-51. Decided on 14 March 2018.
- 20.
Article 36:
Section 3 The following acts, among others, to the extent to which they conform to the principles set forth in the caput of this article and its clauses, shall characterize violations of the economic order:
IX - to impose on the trade of goods or services to distributors, retailers and representatives, any resale prices, discounts, payment terms, minimum or maximum quantities, profit margin or any other market conditions related to their business with third parties;
X - to discriminate against purchasers or suppliers of goods or services by establishing price differentials or other operating conditions for the sale or provision of services;
XII – to hinder or disrupt the continuity or development of business relationships of undetermined term, because the other party refuses to abide by unjustifiable or anticompetitive terms and conditions;
XVIII - to condition the sale of goods on the acquisition or use of another good or service, or to condition the provision of a service on the acquisition or use of another good or service.
- 21.
Article 39. Forbidden abusive practices by the products or service provider includes:
I - conditioning product or service delivery to the delivery of another product or service as well as specific quantitative limits without just cause.
- 22.
Article 32. Manufacturers and importers must make replacement parts available for as long as the product in question is still being manufactured or imported.
Sole paragraph. When production or importation is halted, the offer of replacement parts must be maintained for a reasonable time period, in the form of the Law.
- 23.
Coty Germany GmbH v Parfümerie Akzente GmbH, ECLI:EU:C:2017:941.
Acknowledgements
The rapporteur would like to thank his colleagues from the Study Committee in Competition of the Brazilian Intellectual Property Association – Ms. Julia Davet Pazos, Ms. Barbara Leitão, Ms. Beatriz Vergaça Castro, Ms. Paola Luongo Lorenzetti and Mr. José Mauro Decoussau Machado - for the inestimable aid with research and responding the questions.
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Oquendo, F.B. (2019). Brazil. In: Këllezi, P., Kilpatrick, B., Kobel, P. (eds) Liability for Antitrust Law Infringements & Protection of IP Rights in Distribution. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-030-17550-4_17
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