Post by xyz2900 on Feb 11, 2024 12:54:54 GMT 5.5
The São Paulo Court of Justice understood that the use of the original brand of a product to sell it on the internet is a legal activity that cannot be confused with piracy, nor does it offend intellectual property rights. The manifestation, by unanimous vote, was from the 2nd Chamber of Private Law, which judged presented by the company Mercado Livre against the decision of judge Erna Thecla Maria Hakvoort. The TJ's decision upheld the appeal, giving the virtual company the right to exercise free initiative, as long as there is no unequivocal proof of violation of industrial trademark or intellectual property rights. The judge of first instance had granted anticipatory relief that obliged the company to refrain from publishing and displaying for sale, on its website, any products marked by the brand or logos of the company Puma Sports under penalty of payment of a daily fine of R$ 1 thousand.
Unsatisfied with the decision, Mercado Livre filed an appeal with the TJ claiming the suspensive effect of the decision. It maintains that the judge did not take into account the principle of trademark exhaustion, which prohibits the impediment of the free circulation of a product placed on the domestic market. It also argues that the advance of protection is based on the presumption that the virtual company sells counterfeit Belize Email List products, that its activity is not legal and that it would be responsible for the offer made by users of the virtual market. The company explains that, on the contrary, it offers an intellectual property protection program and that it respects the trademark rights of the products it displays for sale on the website.
The TJ, by unanimous vote, held that despite the trademark right held by Puma, after the first sale of the product on the market, the right to the trademark is exhausted, so that the trademark holder will no longer be able to invoke the exclusive right to prevent subsequent sales. “The virtual market is no different from other spaces and counters advertising offers, as seen in newspapers, specialized magazines, etc. The advertiser, even if he does not own the brand, is not always a counterfeiter (who violates the brand right), so proof of the legitimacy of the products offered is necessary”. According to the rapporteur of the appeal, judge José Joaquim dos Santos, it would be for this reason that the company Mercado Livre would provide an intellectual property protection program.
Unsatisfied with the decision, Mercado Livre filed an appeal with the TJ claiming the suspensive effect of the decision. It maintains that the judge did not take into account the principle of trademark exhaustion, which prohibits the impediment of the free circulation of a product placed on the domestic market. It also argues that the advance of protection is based on the presumption that the virtual company sells counterfeit Belize Email List products, that its activity is not legal and that it would be responsible for the offer made by users of the virtual market. The company explains that, on the contrary, it offers an intellectual property protection program and that it respects the trademark rights of the products it displays for sale on the website.
The TJ, by unanimous vote, held that despite the trademark right held by Puma, after the first sale of the product on the market, the right to the trademark is exhausted, so that the trademark holder will no longer be able to invoke the exclusive right to prevent subsequent sales. “The virtual market is no different from other spaces and counters advertising offers, as seen in newspapers, specialized magazines, etc. The advertiser, even if he does not own the brand, is not always a counterfeiter (who violates the brand right), so proof of the legitimacy of the products offered is necessary”. According to the rapporteur of the appeal, judge José Joaquim dos Santos, it would be for this reason that the company Mercado Livre would provide an intellectual property protection program.