terça-feira, 28 de maio de 2013

Intellectual property and 'fair use' under Brazilian Law

See also:

Frequently I am asked by my clients on matters related to the protection of trademarks, brands, company names, software contracts and other issues of intellectual property in Brazil. Recently a client asked me about the so-called "fair use" in Brazil, and if he could make references to other brands in his product without permission of the owner.

Many of my clients are familiar with the concept of "fair use", but fact is that there is no express provision of this concept in the brazilian rules of intellectual property protection, although some laws that make indirect references to this concept.

For example, Brazil is a member of the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights), which provides that:

Article 17
Members may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties.

The protection of brands in Brazil is also regulated by National Act No. 9.279 of 1996, which says:

Article 132. The trademark holder may not:
IV - prevent the mention of the brand in speeches, scientific or literary or any other publication, as long as there are no commercial connotation and no damage to the brand's distinctive character.

The Brazilian copyright law (National Act No. 9.610 of 1998, article 46) and the Brazilian software law (National Act No. 9.609 of 1998, article 6) also have some rules that resemble the American concept of fair use, most of them related to the non-commercial, artistic or cultural use.

Thus, one can notice that, although that Brazilian law does not expressly stipulate the concept of "fair use", there are in Brazil a number of possibilities of use of trademarks or brand names without violation of intellectual property rights.

Is there any reader who works with IP and would like to contribute to the discussion?

See also:

Nenhum comentário:

Postar um comentário

Do you have any doubts or suggestions? Leave your message (the comments shall not be considered as legal advice)