terça-feira, 14 de janeiro de 2014

License and Brand Registry: A Very Important Detail

According to the Brazilian Law, more than having a contract guaranteeing the exclusivity to explore a brand in the country, it is important to have it registered in the competent governmental institution, which means in the National Institute for Industrial Property (INPI, in Portuguese). Only with the appropriate registry, this exclusivity contract is opposable to a third part. Without it, the contract is not invalid, however you cannot expect a estrange person to respect its terms.

An example of this situation is the case – mentioned by Natália de Araújo Vieira on her master’s degree project – between the Sudop Optical Industry and the Maclens Optical LTDA., concerning the distribution of contact lenses from the brand Varilux in Brazil. The Sudop Industry alleged that Maclens Optical had violated its rights for the exclusivity upon the distribution of the Varilux’s lenses in the country, since it has imported the same lenses from the authorized distributor from Hong Kong, but in a lower price than the one usually applied. In this case, the Sudop Industry intended to act in order to protect the brand, trying to avoid that its property rights would be disrespected by others. In spite of this intention, the applicant did not prove its condition of licensed, so, it could not demonstrate its real intention to protect the wills of the brand’s holder.

Here, the main point is that the licensed distributor in Brazil didn’t have the required registry in INPI. Hence, its alleged exclusivity rights could not be opposed to a third part, in the case, Maclens Optical LTDA. Even if the contract is elaborated, signed and submitted to the registry of deeds and documents, it must be registered before INPI, in order to be opposable to other parts. When it’s not registered, situations as in the case above may happen.

Therefore, it is important to pay a special attention in order not to forget to make the registry. Many complicated judicial issues can be avoided if you remind of this small detail, so the contract becomes opposable to others parts besides the ones which signed it.

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