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Date: 19 de February de 2024
Posted by: CPDMA Team

Misuse of a trademark by a former partner can be recognized not only as unfair competition, but also as bad faith.

Notícia CPDMA: uso indevido de marca

On February 14, the magazine "Valor Econômico", an article in which it was pointed out that the São Paulo Court of Justice had recognized unfair competition in the undue use of a trademark by a former partner.

The news item, however, does not give the number of the case in which it would be possible to analyze more details of the decision, but it does inform that the individuals had signed a partnership agreement in the footwear business, having started activities in 2018. It so happens that after leaving the company, the ex-partner started using the trademark in another business, in the same field of activity, using the name in internet domains and social networks, as well as registering the trademark as if it were her own. The case was judged in favor of the plaintiff in the first degree and had the decision confirmed in the second degree, justifying that, although the defendant had registered the trademark first, unfair competition should not be ruled out, given that the trademark is widely related to the plaintiff, applying the parameter of anteriority established by the STJ.

"Given the use of such an expression in a precedent and consolidated manner, it is conceivable that the opposing party could not use the same designation in the same marketing niche, whether in a physical or virtual establishment by any means, as such conduct involves abuse of rights and unfair competition, since it gives rise to undue association between suppliers and confusion for the consumer public," said Reporting Judge Azuma Nishi.

Although it was not analyzed in the decision commented on here, the situation could, in theory, constitute bad faith on the part of the defendant. Based on article 124, item XXIII of Industrial Property Law 9.279/96, it could not register a sign that reproduced, in whole or in part, a trademark that it clearly could not have been unaware of due to its activity, even more so in the case of a former partner, since the trademark is intended to distinguish an identical, similar or related product or service that is likely to cause confusion or association with another's trademark, as is the case here.

Intellectual Property | CPDMA Team

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