Wednesday, 16 June 2010

Rio 2007: can moral damage be presumed or must it be proved?

Although soccer World Cup ambush marketing is currently getting plenty of publicity, it is the Rio Pan American Games in 2007 which is the focal point of a recent piece of Brazilian litigation -- the Court of Appeals for the State of Rio de Janeiro has upheld a damages award in a trade mark infringement action brought by the Rio Pan American Games Organizing Committee against a taxi cooperative which used the RIO 2007 word and design trade mark without authorization.

According to the trial court, the cooperative infringed. The court awarded damages based on the royalty the cooperative would have paid, had it been a licensee of the Committee. The Committee also sought “moral damages” (compensation for harm to the Committee’s reputation) and it was against that court's refusal to award damages under this head of claim that the appeal was lodged.

Dismissing the appeal, the Court of Appeals said there was no proof of reputational harm. This decision is said to be at odds with recent decisions of the Brazilian Superior Court of Justice. According to that court, specific proof of reputational harm is not required in the case of trade mark infringement because damage to reputation may be presumed.

Source: INTA Bulletin, vol.65, no.11

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