In only three cases tried, there was no conviction for moral damages. The judges understood that, as the product did not enter the country, the damage was not configured. "However, our claim is that mere importation already violates the industrial property right, because the product did not just enter for reasons completely foreign to the will of the importer and would not be its first importation," says Augusto.
The fight against piracy began in mid-2017 and has prevented the entry of about 480 thousand sets of card decks in Brazil, according to the lawyer. The proceedings are the result of a work carried out by the Federal Revenue, which retains these goods, based on the customs regulations, and informs the owner of the brand to verify the authenticity of the products.
"Importers are correcting their positions to avoid future convictions. The market is free as long as there is no trademark reproduction," says Augusto. He points out that the decisions of the second instance, issued by the 2nd Chamber of Business Law and 1st Reserved Chamber of Business Law, took into account the registration obtained by Copag at the National Institute of Industrial Property (INPI).
The 2nd Restricted Chamber of Business Law, in a recent trial, maintained a decision that sentenced an importer to pay moral damages in the amount of R$ 20 thousand (US$ 5,000). The competitor was still prohibited from stocking or marketing products under the Copag brand, under penalty of a daily fine of R$ 5 thousand (US$ 1,300), in addition to being obliged to destroy the merchandise.
In the appeal (civil appeal nº 1052170-33.2017.8.26.0002), the importer claimed to be a mere service provider, not being responsible for the products. He also asked for a reduction in the amount of the compensation, if the first instance conviction were maintained by the judges.
In analyzing the process, however, the rapporteur, Judge Mauricio Pessoa, pointed out that the importer entered products in the country without authorization, which bear imitation or reproduction of the Copag brand. In this case, it is the drawing on the back of the deck. The conduct, added the magistrate, is typified as a crime against the brand, as provided for in item I, of article 190 of the Industrial Property Law - No. 9.279 of 1996.
According to the judge Mauricio Pessoa, the importer must be condemned for moral damages, which are presumed and lack proof "since the harmful effects are known."
In the other case (nº 2182420-46.2017.8.26.0000), the 1st Chamber of Business Law Reserves maintained a first instance conviction to seize the imported products. According to the rapporteur, Judge Hamid Bdine, Copag is the owner of the registration of the figurative brand stamping decks from August 9, 2011, valid until August 9, 2021, "which gives it legitimacy to ensure its material integrity and reputation. "
Source: GMB / Adriana Aguiar - Valor
