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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