Judges of Rio de Janeiro Discuss Patents and Trademarks Infringement: How Much the Enforcement System Can Be Improved?

It is recognized that the weakest matter of the Brazilian IP System is the enforcement. Brazil’s bad reputation in enforcing IP rights comes from the judges’ lack of knowledge on patents and trademarks and the authorities’ permissive behaviors towards infringers, grounded on the need to protect the “local industries”.

Some courts in Brazil have taken a pro-active role to change the misconception that IP Enforcement System is lax and protects only the locals. This is the case of the State Court of Rio de Janeiro (TJRJ), which maintains specialized courts on commercial matters, including industrial property, and affirms the view that enforcing immaterial rights and hampering unfair competition are beneficial to secure foreign and local investments in production.

The intensive work led by the judges in Rio de Janeiro resulted in the reduction of the time frame for rendering a decision in the first instance. Matters involving patents and/or trademarks take approximately 18 months to be delivered. An appeal is examined and decided in 12 months. Moreover, the rendered decisions are usually regarded of good quality.

Nevertheless, the judges of the TJRJ seem not to be satisfied with this improvement, as it was organized from July 30 to August 1, 2010 in Angra do Reis, a Seminar on “Trademarks and Patents in the Court Room”, promoted by the State University of Rio de Janeiro (UERJ), the INPI, the Instituto Justiça & Cidadania, the American Consulate in Brazil and the law firms Mayer Brown LLP and Di Blasi, Parente, Vaz e Dias Advogados & Associados.

This Seminar addressed important issues faced by IP owners at the TJRJ, such as the evidence damages requirement for a plaintiff to obtain injunctions and prevent infringers from ceasing the use of IP rights. Another aspect was the proof of evidence on patent infringement and the relationship between the judges and the technical assistants, among others

Further to that, Chief Judge Randall Rader from the United States Court of Appeals for the Federal Circuit delivered a special speech on “The Role of the Courts in the Defense of the Industrial Property Rights System: The American Experience”, which reinforced the importance of the Brazilian judges to address attentively IP rights owners and enforce them.

This Seminar is the beginning of a required deeper education of the judges in Rio de Janeiro, since they will be now the main actors of the Brazilian IP System. One has to remember that conflicts involving TRIPS, patent revalidation and extension have been resolved in June by the Superior Court of Justice (STJ). Now, it is time to pick the weaponS and fights for its IP rights.