The registration of the designation of a beer style at the National Institute of Industrial Property (Inpi), even as a brand, should not prevent competitors from mentioning it on the labels of their products. After all, it is an expression in common use, which cannot be exclusively appropriated.

This was the understanding applied, by majority, by the 6th Civil Chamber of the Court of Justice of Rio Grande do Sul when it overturned an injunction, granted at the end of June, which prevented Cervejaria Abadessa, from Pareci Novo (RS), from using the designation helles (clear/clear/bright, in German) for one of their beers.

The dispute began in January 2019 after the Fassbier Brewery registered, as a brand, the name of the beer style. To prevent competitors, it began to send out-of-court notification informing that it was the exclusive holder of the trademark registration at Inpi since August 2007.

Against the Abadessa brewery, one of the main brewers of the beer style in Rio Grande do Sul, Fassbier asked in court that the competitor be prohibited from using the brand, in addition to material and moral damages.

Judge Cláudia Brugger, from the 4th Civil Court of Caxias do Sul, granted an injunction prohibiting the Abbess from using the expression helles. "There is danger of damage, since the registration of the trademark grants the applicant the exclusive use of the trademark until the end of its validity", said the judge, setting a daily fine of 5 thousand, limited to R$ 50 thousand in case of non-compliance.

The Abbess lodged an appeal, asking the Court of Justice to reverse the decision. The lawyer Vanessa Oliveira Soares, from Cesar Peres Advocacia Empresarial (CPAE) acted in the defense of Cervejaria Abadessa.

The rapporteur of the grievance in the 6th Civil Chamber, judge Eliziana da Silveira Perez, voted to maintain the injunction. However, the rapporteur was outvoted. The divergence opened by the judge Ney Wiedemann Neto prevailed.

According to the judge, the misuse of name or brand was not evidenced, given that the plaintiff's registration is of the name helles, which is nothing more than the designation of a style of beer. So in common use.

Wiedemann pointed out that the defendant's trademark is ''Cervejaria Abadessa'', not ''Helles''. And that this word printed on the label is intended to inform the consumer about a beer category, which differs from the others in terms of color, flavor, strength, ingredients, production method, recipe, history or origin. As in the lager, pilsen, weissbier, india pale ale, red ale and even munich helles styles, among others.

Thus, with the support of the judge, Luís Augusto Coelho Braga, he considered the claim of exclusive use of the expression by the author to be unreasonable, in view of the registration at Inpi. ''That said, I vote to grant the interlocutory appeal for the purpose of allowing the appellant [Abbess] to continue its activities, manufacturing and marketing helles-style beer'', he concluded in the judgment.

Source: Jomar Martins via Conjur.