The Kellis IP Weekly: Issue 11.2
BRAZIL
Patents
INPI Participates in Design Law Treaty Negotiations: The negotiations, which will continue through November 22, are taking place in Riyadh, Saudi Arabia with the goal of defining a simplified, universal process for obtaining design protection. (Note that while designs are protected by design patents in the U.S., in Brazil they are protected through a simple registration process that falls under the responsibility of the Trademark Directorate.) See https://www.gov.br/inpi/pt-br/central-de-conteudo/noticias/conferencia-finaliza-negociacoes-sobre-tratado-internacional-para-protecao-de-designs (Portuguese). #industrialdesigns #designpatents #IPpolicy #internationalcooperation #IPtreaties #DLT
Trademarks
Public Consultation – 90-Day Comment Period on Acquired Distinctiveness Act and Guidelines: Beginning October 25, INPI is accepting comments regarding drafts of the normative act and guidelines that will provide for the consideration of acquired distinctiveness during trademark examination. Both drafts are available for review on INPI’s website. See https://www.gov.br/inpi/pt-br/central-de-conteudo/noticias/inpi-abre-consulta-publica-sobre-distintividade-adquirida-de-marcas (Portuguese). #trademarks #acquireddistinctiveness #publicconsultations
Copyright
No Copyright Infringement in Herlomm Grandão Case Against Pabllo Vittar: A court-appointed expert analyzed the lyrics of defendant Pabllo Vittar’s “Ama, Sofre, Chora” (You Love, You Suffer, You Cry) in comparison to plaintiff Herlomm Diosly dos Reis Silva’s “Amar, Sofrer, Chorar” (To Love, To Suffer, To Cry). Citing Article 8, Section I of Brazil’s copyright law (Law No. 9610/98), which provides that ideas are not subject to protection as copyright, the expert concluded that the use of the words “love,” “suffer,” and “cry” in the two songs was intended to accomplish “completely different artistic ideas,” such that there was no copyright infringement. The expert also noted that artist Byghal released a song entitled “Amar, Sofrer, Chorar” in 2019—before either of the musical works at issue in the suit. Judge Miguel Ferrari Junior of the 43rd Civil Court of São Paulo found the expert’s opinion dispositive and ruled in favor of Ms. Vittar. See https://www.migalhas.com.br/quentes/419882/juiz-nega-acao-de-r-1-mi-a-cantor-que-acusou-pabllo-vittar-de-plagio (Portuguese); https://www.migalhas.com.br/arquivos/2024/11/8B9904BC236390_doc_130004882.pdf (Portuguese). #copyright #copyrightinfringement
G20 Culture Ministers Meeting Yields Pro-Artist Proposal for Consideration by G20 Leaders: The proposal calls for any AI regulations—including regulations related to streaming platforms—to “enhance human skills, increase productivity and respect universal human rights,” and also calls for fair remuneration to creators when their works are used in digital environments. The CEO of Interartis Brasil, which represents Brazilian artists, views the document as evidence of the international community’s resolve to ensure respect for the rights of creators in the digital world. See https://veja.abril.com.br/coluna/radar/g20-da-cultura-defende-pagamento-de-direito-autoral-por-plataformas (Portuguese). #copyright #artistremuneration #G20 #IPpolicy #internationalcooperation #culture
Sony Music Liable for Failing to Properly Credit Creator of 1962 Musical Work: Judge Isabela Canesin Dourado Figueiredo Costa of the 12th Civil Court of São Paulo ruled that Sony Music Entertainment Brasil Ltda. and EMB Produções, Eventos e Promoções Artísticas Eirelli must properly credit the creator of a 1962 song used in schools for educational purposes, in addition to paying the individual in question material and moral damages to compensate for their failure credit the creator over the last three years (the statutory limit). See https://www.migalhas.com.br/quentes/419810/justica-exige-que-sony-credite-autor-de-musica-famosa-de-eliana (Portuguese). #moralrights #copyright #copyrightlitigation
Court Upholds Assignments Executed in the Pre-Streaming Era: Famous musicians Erasmo Carlos (now deceased) and Roberto Carlos assigned their copyrights in 72 musical works to Editora Fermata do Brasil, through the execution of 47 contracts dating as far back as the 1960’s. Unhappy with the minimal royalties they were receiving for the reproduction of the works in question via streaming services, however, the pair challenged the nature of those contracts, arguing that the documents were temporary “publishing” contracts rather than permanent assignments of rights. The effort has been unsuccessful, though, as judicial decisions in September 2020, November 2021, and now November 2024 have all ruled in favor of Editora Fermata do Brasil. In the most recent decision, the 3rd Panel of the Superior Court of Justice rejected the singers’ argument that they had not intended to fully transfer the copyright in the works, noting that the parties had repeatedly entered into contracts with similar language over a 20-year period. The court also reasoned that the express language of the contracts explicitly permits the “graphic or phonomechanical reproduction of any kind,” “as many times as necessary,” of the works at issue, as well as the “adaptation and transformation [of those works] for any other form of exploitation and dissemination.” See https://www.conjur.com.br/2024-nov-12/editora-e-dona-das-musicas-de-roberto-e-erasmo-e-pode-explora-las-por-streaming/ (Portuguese); https://www.conjur.com.br/2021-nov-22/tj-sp-nega-cessao-72-musicas-roberto-carlos-erasmo-carlos/ (Portuguese); https://www.conjur.com.br/2020-set-28/negados-direitos-autorais-72-musicas-roberto-erasmo/ (Portuguese). #contracts #copyright #assignments #artistremuneration
Enforcement
Brazil-based Pirated Films Site Shuts Down: Braflix, a pirated film streaming site that was receiving more than a million visits per month, voluntarily transferred its domains to legal authorities and ceased operations under pressure from an enforcement campaign waged by MPA, the Alliance for Creative Entertainment (ACE), and the City of London Police. See https://torrentfreak.com/braflix-to-shut-down-pirate-site-throws-the-towel-citing-legal-pressure-241104/ (Portuguese). #digitalpiracy #IPenforcement #streaming #piracy
Other
Public Consultation – INPI Pricing Policy: MDIC and INPI initiated, on November 11, Public Consultation MDIC No. 03/2024 regarding INPI’s pricing policy. The draft text for which comments are solicited does not set forth specific prices; rather, it addresses the manner in which prices will be determined. Comments will be accepted for 60 days through a form linked on the following website. See https://www.gov.br/inpi/pt-br/central-de-conteudo/noticias/mdic-e-inpi-abrem-consulta-publica-sobre-proposta-de-politica-de-precos (Portuguese). #IPpolicy #IPoffice #fees #publicconsultation
GIPI Selects New Civil Society Members: Of 32 applicants to participate as civil society members of the Interministerial Group on Intellectual Property, 20 were accepted, including pro-IP entities such as the Brazilian IP Association (ABPI), the Research Pharmaceutical Industry Association (INTERFARMA), the São Paulo IP Association (ASPI), the American Chamber of Commerce for Brazil (AmCham), CropLife Brazil, the Motion Picture Association Latin America, and Pro-Música Brasil Associated Phonographic Producers. Pro-IP entities whose applications were rejected include the Brazilian Association of the Electrical and Electronic Industry (ABINE), for failing to demonstrate adequate nexus to the work of GIPI; the Brazilian Association of IP Agents (ABAPI), for failing to submit updated documentation; and the International Trademark Association (INTA), for not being headquartered in Brazil. Unsuccessful applicants have until Nov. 20 to appeal. See https://www.gov.br/propriedade-intelectual/pt-br/assuntos/noticias/2024/novembro/confira-as-instituicoes-da-sociedade-civil-habilitadas-para-participacao-no-grupo-interministerial-de-propriedade-intelectual-gipi (Portuguese). #GIPI #publicprivatecooperation
Upcoming INPI Closures: The agency will be closed on Nov. 15 for Proclamation of the Republic Day and on Nov. 20 for Black Consciousness Day, with deadlines falling on these days extended to the next business day. Additionally, the agency will close at 2:00 pm on Dec. 24 and 31, and has announced that “deadlines that expire on these dates will be extended to the following business day” as well. See https://www.gov.br/inpi/pt-br/central-de-conteudo/noticias/confira-o-funcionamento-do-inpi-no-periodo-de-15-a-20-de-novembro (Portuguese); https://revistas.inpi.gov.br/pdf/Comunicados2808.pdf (Portuguese). #IPoffice
Non-IP Topics of Interest
Violence Once Again Arrives at Three Powers’ Square in Brasília: On Wednesday, November 13, a car in the Chamber of Deputies’ parking lot exploded, and not long after the driver of the vehicle died as he attempted to throw explosives at the Supreme Court building. The deceased man, a former candidate for city councilor in Rio do Sul, Santa Catarina, entered an annex of the Chamber of Deputies before making his way toward the Supreme Court. On social media, he had criticized the STF, President Lula, and the presidents of both houses of Congress. An investigation into the attack will be led by Supreme Court Minister Alexandre de Morães. See https://www.estadao.com.br/politica/praca-dos-tres-poderes-em-brasilia-e-isolada-apos-explosao-corpo-de-um-homem-esta-no-local/ (Portuguese).
Senate Approves Bill Regulating Carbon Credit Market: The bill, PL 182/2024, creates the Brazilian Greenhouse Gas Emissions Trading System, which would facilitate the purchase of credits linked to environmental conservation projects to offset emissions. Due to amendments made to the bill since it was approved by the Chamber of Deputies, the text will now go back to the Chamber of Deputies for final approval. Proponents hope that the bill will help fight climate change, help Brazil meet its emissions targets under the Paris Agreement, and protect Brazilian exports from carbon-related taxes imposed by the EU. See https://www12.senado.leg.br/noticias/materias/2024/11/13/apos-muito-debate-senado-aprova-projeto-que-regula-mercado-de-carbono (Portuguese); https://www.gov.br/mdic/pt-br/assuntos/noticias/2024/novembro/201ca-regulacao-do-mercado-de-carbono-foi-uma-aprovacao-importante-que-vem-ao-encontro-da-ndc-que-apresentamos-na-cop-29-ontem201d (Portuguese). #climatechange #carboncredit #legislation
Vice-President Alckmin Highlights Potential of Tax Reform, Benefit of Reduced Bureaucracy: Speaking at the 2nd Congress on Tax and Customs Law on Thursday, November 7, Vice President and MDIC Minister Geraldo Alckmin stated that Brazil’s tax burden is 33% of GDP and yet Brazil must compete with China, India, and Mexico, which have tax burdens of 22%, 18.5%, and 17%, respectively. He further noted that by itself, tax reform would increase GDP by 12%, investment by 14%, and exports by 17% over 15 years. Mr. Alckmin also emphasized Brazil’s efforts to reduce bureaucracy, including through the implementation of a “Single Portal” and a “Flex license,” which greatly simplify the import and export process. See https://www.gov.br/mdic/pt-br/assuntos/noticias/2024/novembro/alckmin-defende-desburocratizacao-em-nome-da-eficiencia-economica-em-congresso-de-direito-tributario-e-aduaneiro (Portuguese). #taxreform #deregulation
CHILE
ATN, Netflix Sign Agreement for Remuneration of Directors and Screenwriters: The Chilean Society of Audiovisual Directors, Screenwriters, and Playwrights (ATN) reached an agreement with Netflix that will result in “fair and equitable remuneration” for directors and screenwriters for the exhibition of their works. The agreement comes nearly a decade after Chile passed, in 2016, the Ricardo Larraín Law, which established an inalienable and non-transferable right of authors to receive remuneration for the transmission or broadcasting of their audiovisual works. See https://www.fesaal.org/post/chile-atn-signed-an-agreement-with-netflix-ensuring-fair-compensation-for-audiovisual-authors?lang=en (English). #publicprivatecooperation #IPpolicy
MEXICO
Mexico City Hosts FESAAL and AVACI Congresses: From November 5-7, the Congresses of the Federation of Latin American Audiovisual Authors’ Societies and the International Confederation of Audiovisual Authors were held in Mexico City. The events celebrated the organizations’ successful advocacy for laws in Argentina, Uruguay, Chile, Colombia, and Panama that improve author’s rights and remuneration rights in those countries, while looking ahead to the hoped-for passage of similar legislation in Brazil. Other topics, such as the need for appropriate regulation of AI, were also discussed. See https://www.fesaal.org/post/horacio-maldonado-it-will-be-a-key-meeting-for-the-future-of-audiovisual-authors-rights-worldwide?lang=en (English); https://www.fesaal.org/post/somedire-and-sogem-prepare-for-the-world-s-most-important-audiovisual-authors-meeting?lang=en (English). #copyright #artistremuneration #IPpolicy
PARAGUAY
DINAPI Investigation Leads to Seizure of 3,000 Counterfeit Smart Watches: The watches, marked with well-known brands such as Apple or Xiaomi, were discovered through investigative work by DINAPI’s Directorate for the Fight against Piracy and Counterfeiting. Once made, the discovery of the counterfeit watches was reported to the Specialized Unit for IP and Smuggling of the Public Prosecutor’s Office in Villa Hayes, after which Prosecutor Rosa Heinroth obtained a court order, seized the goods, and had them transferred to an evidence storage facility in Asunción while the investigation into the responsible parties continues. See https://www.dinapi.gov.py/portal/v3/noticias/detalle-noticia?idNoticia=495 (Spanish). #counterfeiting #IPenforcement
PERU
INDECOPI Representative Elected to Lead Negotiations for Design Law Treaty: Sergio Chuez, Director of Distinctive Signs of INDECOPI, was elected by WIPO’s member states to chair Main Committee I of the Diplomatic Conference convened in Riyadh, Saudi Arabia to conclude a design law treaty. Chuez previously chaired the Third Special Session of the Standing Committee on Trademarks, Industrial Designs and Geographical Indications, where he was responsible for building consensus among member states during a preliminary review of the draft design law treaty. See https://www.gob.pe/institucion/indecopi/noticias/1057428-eligen-a-representante-del-indecopi-para-dirigir-negociaciones-de-un-tratado-global-sobre-disenos-industriales-en-arabia-saudita (Spanish). #DLT #internationalcooperation #IPtreaties #industrialdesigns #IPpolicy
VENEZUELA
Venezuela Presents “New Era of IP” at WIPO High-Level Meeting: During a WIPO-hosted meeting of leaders of the IP offices of Latin America and the Caribbean in Bogotá, Colombia, representatives of Venezuela’s SAPI explained that Venezuela’s public and private sectors are collaborating to develop a National IP Strategy for 2025-2030, the aim of which is to promote harmonization with global norms and standards and improve the national trade flow. SAPI Director General Hendrick J. Perdomo called for collaboration to strengthen the regional IP system. See https://sapi.gob.ve/venezuela-expone-en-reunion-de-alto-nivel-de-oficinas-de-la-ompi-en-la-region-la-nueva-era-de-la-propiedad-intelectual-en-el-pais/ (Spanish). #IPpolicy #internationalcooperation #IPstrategy
UPCOMING IP EVENTS
*November 22, 2024: VIII Meeting on Development of Agroindustrial Processes. Online. https://uniube.br/eventos/edepa/ (Portuguese).
*January 22-24, 2025: World Intellectual Property Forum. Dubai. https://www.worldipforum.com/ (English).
*January 27-28, 2025: International Intellectual Property Lawyers Association Conference. Dubai. https://iipla.org/events/dubai/ (English).
March 17-19, 2025: XXIV ASPI Intellectual Property Congress. Sao Paulo, Brazil. https://congresso.aspi.org.br/ (Portuguese).
March 20-23, 2025: XX ABAPISUL Regional Meeting. Foz do Iguaçu, Brazil. https://abapi2.org.br/ (Portuguese).
* Indicates events at which I will be speaking.
^ Indicates events I will be attending.
QUESTIONS OR CONCERNS
Kellis IP is available to provide consulting services to help you understand and respond to any of the developments highlighted in this newsletter, or any other IP issues in Brazil and the surrounding region.
