The Kellis IP Weekly: Issue 8.2
BRAZIL
Patents
No developments to report (but see patent-related developments in Argentina and Uruguay below).
Trademarks
INPI Launches New Process for Reconstruction/Restoration of Trademark Files: INPI’s August 6, 2008 Industrial Property Gazette includes information about dozens of trademark files that have been misplaced, lost, or inadvertently destroyed, including files that date back to the early 2000’s. The goal of the process is to reconstruct files using copies of documents from the original files, and interested parties may contact INPI for further information. See https://www.gov.br/inpi/pt-br/central-de-conteudo/noticias/inpi-faz-reconstituicao-e-restauracao-de-processos-de-marcas-6 (Portuguese); https://revistas.inpi.gov.br/pdf/Comunicados2796.pdf (Portuguese). #trademarks
Maintenance of Original Distinctive Character Critical When Modifying Registered Mark: Trademark owners who wish to modify their trademark registrations may do so but, to avoid a loss of rights (for example, when responding to a non-use cancellation request), must ensure that the modifications to the mark do not hamper the ability of consumers to recognize the mark. To minimize the likelihood of excessive modifications, brand owners might consider revising only secondary elements of the mark without changing the mark’s primary elements, and/or using consumer surveys to guide the revision process. See https://www.worldtrademarkreview.com/article/can-you-modify-registered-trademark-in-brazil (English). #trademarks
Copyright
Media Conglomerate Globo Cheers AI Regulation, Criticizes Big Tech: Contrasting the US position that monopolies are problematic when they harm consumers with the EU position that monopolies should also be prevented from harming innovation and stifling competitors, Globo’s editorial board argues that companies should not be permitted to base their business on the work of others without compensation (a reference to training AI systems), or to use customer information without authorization (a reference to privacy practices). As a result, Globo believes that Brazil is right to “tighten[] regulatory sieges” on large digital platforms in defense of privacy, copyright, and free competition. See https://oglobo.globo.com/opiniao/editorial/coluna/2024/08/ preservar-privacidade-e-direito-autoral-no-meio-digital-deveria-ser-consenso.ghtml (Portuguese). #copyright
G20 Cultural Meetings Convene in Rio, with Focus on Artist Remuneration and AI: During the week of August 5, both the G20 Cultural Meeting and a parallel event, the Seminar on Policies for the Creative Economy: G20 + Ibero America, are being held in Rio de Janeiro. Early in the week, attendees of the G20 Cultural Meeting expressed support for ensuring fair distribution of profits to creators, among other points. The Seminar focuses on items relevant to Brazil’s new National Policy for the Creative Economy (launched August 7, together with a new Secretariate of the Creative Economy within the Ministry of Culture), with panels on topics such as Remuneration of Artists on Platforms and Artificial Intelligence and Copyright. A spokesperson for the Ministry of Culture emphasized that although participating countries have their respective positions on the issue of remuneration, they agree on the need for improvements and are working in a cooperative atmosphere to achieve consensus. See https://www.gov.br/cultura/pt-br/assuntos/noticias/primeiro-dia-do-gt-do-g20-da-cultura-no-rio-de-janeiro-um-balanco-das-atividades (Portuguese); https://veja.abril.com.br/coluna/ radar/o-papel-de-gilberto-gil-na-reuniao-do-g20-da-cultura-no-rio/ (Portuguese); https://www.gov.br/cultura/pt-br/assuntos/noticias/minc-lanca-diretrizes-da-politica-nacional-de-economia-criativa-nova-secretaria-tambem-e-anunciada (Portuguese); https://www.gov.br/cultura/pt-br/assuntos/noticias/direitos-autorais-e-remuneracao-foram-temas-do-segundo-dia-do-gt-da-cultura-no-rio-a-tarde-debate-foi-sobre-patrimonio-cultural (Portuguese). #copyright
Artist Wins R$50,000 Moral Damages Award in Copyright Dispute: Jorge Bragança, a composer who was commissioned and paid to compose music for the audiovisual production “Parque Patati Patatá,” successfully sued music producer Ricardo Andrade and company Rinaldi Produções for failing to recognize Mr. Bragança’s copyright rights in the commissioned works and failing to compensate him for the exhibition of the works on open and closed television channels and digital platforms. In a decision that can be appealed, Judge Guilherme Depieri of the 10th Civil Court of Santo Amaro in São Paulo ordered the defendants to credit Mr. Bragança for his work on all streaming platforms on which the works are made available, to pay R$50,000 in moral damages, and to pay economic damages in an amount to be determined. See https://g1.globo.com/sp/sao-paulo/noticia/2024/08/02/justica-de-sp-condena-dona-da-marca-patati-patata-e-produtor-musical-a-pagarem-r-50-mil-por-danos-morais-a-compositor.ghtml (Portuguese). #copyright
ECAD Distributes R$817.6 Million in Copyright and Related Rights Payments in First Half of 2024: The amount represents a 31% year-over-year increase for the same period, even though the number of shows from which the money was collected dropped 27%. One reason for the rise was ECAD’s successful efforts to contract with Apple TV and Kwai for the payment of related rights. Of the more than R$800 million distributed, 47% was collected from the audiovisual segment (TV, cinema, and video streaming), with 16% from radio, 13% from shows, and 11% from audio streaming. Copyright holders received 78% of the total payout, while 22% went to holders of related rights (performers, musicians, and phonographic producers). Foreigners accounted for 25% of the distribution and Brazilian citizens for the other 75%. See https://agenciabrasil.ebc.com.br/geral/noticia/2024-08/ecad-distribuiu-r-8176-milhoes-em-direitos-autorais-no-1o-semestre (Portuguese); https://www4.ecad.org.br/noticias/ecad-musica-no-audiovisual-impulsiona-distribuicao-de-direitos-autorais-no-primeiro-semestre/ (Portuguese). #copyright
Town of Trussu Hosts Screening of Pirated Inside Out 2 in Town Square: Mayor Anthony Almeida of the municipality of Acopiara, in the state of Ceará, used social media to invite the roughly 1000 inhabitants of the town to watch the film. During the screening, attendees noted that the film had a watermark associated with piracy and was sourced from piracy website Obaflix. Mr. Almeida insists that he had only honest intentions. See https://torrentfreak.com/mayor-shows-pirated-copy-of-inside-out-2-on-town-square-big-screen-in-brazil-240805/ (English). #copyright
Enforcement
ANATEL President Advocates for Holding Digital Platforms Accountable for Content: President Carlos Baigorri believes that whether an e-commerce platform sells pirated goods or a social media platform spreads fake news, the platform should be held accountable for the content on its site. Implementing that approach, ANATEL announced plans to fine online retail giants on a daily basis, in amounts from R$200,000 to R$50 million, for selling unauthorized cell phones on their platforms—although Amazon sought and obtained a court injunction against implementation of those plans. See https://veja.abril.com.br/coluna/radar/anatel-quer-enquadrar-amazon-e-mercado-livre-em-marco-contra-fake-news/ (Portuguese). #IPenforcement
Operation Bulldozer Identifies Counterfeit Tractor Parts in São Paulo: The August 2 operation, planned and carried out by the Receita Federal in São Paulo, involved 25 law enforcement officials and resulted in the seizure of merchandise bearing the marks of well-known brands yet lacking proper documentation. See https://www.gov.br/receitafederal/pt-br/assuntos/noticias/2024/agosto/operacao-bulldozer-receita-federal-em-sao-paulo-combate-importacao-irregular-e-falsificacao-de-mercadorias-na-regiao-de-guarulhos (Portuguese). #IPenforcement
Other
Senate President Lists AI, Social Media Regulation as Key Priorities for Second Half of 2024: Speaking to reporters on August 6, Senate President Rodrigo Pacheco identified his legislative priorities for the second half of the year. While most have to do with budget, taxes, and spending, he specifically identified regulating AI and social media platforms as very important for Brazil. See https://www12.senado.leg.br/noticias/videos/ 2024/08/pacheco-desoneracao-e-reforma-tributaria-sao-prioridades-no-semestre (Portuguese). #AI
GIPI Publishes Minutes from June 11, 2024 Meeting: According to the minutes, GIPI will accept applications for membership from civil society organizations beginning this month. GIPI will also begin a process of revising the 2023-2025 Action Plan for implementation of the National IP Strategy, both to reflect lessons learned to date and also to reflect the government’s industrial policy, which was undefined when the Action Plan was originally drafted. Additionally, two new working groups—one on IP and Sustainability and the second on IP and Innovation, Industry, and Education—will be elaborating their respective Action Plans. See https://www.gov.br/participamaisbrasil/ata-da-1a-reuniao-de-20241 (Portuguese). #IPgenerally
INPI Launches Brazil Index of Innovation and Development: The Index, which uses a methodology borrowed from WIPO’s Global Innovation Index, found that the states of São Paulo, Santa Catarina, Paraná, Rio de Janeiro, and Rio Grande do Sul have the most innovative economies, in that order, with São Paulo’s score of 0.891 (on a scale of 0 to 1) more than double that of Santa Catarina’s. While the states in Brazil’s North and Northeast regions scored the worst, the Northeast states scored higher than expected based on their per-capita GDP. The Index should facilitate the identification of pro-innovation practices that can be replicated at the national level. See https://agenciabrasil.ebc.com.br/economia/noticia/2024-08/estados-do-sudeste-e-sul-lideram-primeiro-indice-nacional-de-inovacao (Portuguese). #IPoffice
Non-IP Topics of Interest
AI Bill Mature and Balanced, per Executive Branch Representative: Speaking at a public hearing hosted by the Social Communication Council of the National Congress, Marina Pita, Representative of the Digital Policies Secretariat of the Presidency of the Republic, observed that with 19 ministries involved in the discussion of AI regulation, the current bill (PL 2338/23) includes necessary compromises to balance innovation and protection. Ms. Pita also noted that social media platforms still need to be regulated (which is the subject of the “Fake News Bill,” PL 2630/20, previously approved by the Senate but still awaiting analysis in the Chamber of Deputies). See https://www.camara.leg.br/noticias/1086431-governo-considera-proposta-de-regulamentacao-de-inteligencia-artificial-em-analise-no-senado-madura-e-equilibrada/ (Portuguese).
Congress Back in Session, Tax Reform in Focus at Chamber of Deputies: The National Congress returned from its winter recess on August 1. With three plenary sessions scheduled before municipal elections in October, a second bill regulating tax reform (PL 108/24) is a key priority for the Chamber of Deputies. The bill provides for a committee that will manage a new Tax on Goods and Services (IBS) that replaces existing state- and municipal-level taxes, and also addresses taxes on asset transfers. The bill’s rapporteur is optimistic that the bill will be readily approved. Meanwhile, Senate President Rodrigo Pacheco announced that the Senate will vote on PL 68/24, the tax reform bill passed by the Chamber in July, following the October elections to allow for ample discussions and public consultations. See https://www.camara.leg.br/noticias/1086160-segundo-projeto-da-reforma-tributaria-e-destaque-da-pauta-da-camara-em-agosto/ (Portuguese); https://www12.senado.leg.br/noticias/videos/2024/08/pacheco-regulamentacao-da-reforma-tributaria-deve-ser-votada-apos-as-eleicoes (Portuguese).
ARGENTINA
Argentina Losing Out on Billions in Potential Exports Due in Part to IP Gap: Argentina’s soybean yields have dropped far below Brazil’s, costing the country an estimated US$5 billion in lost exports. While the lower relative yields are attributable in part to climate events, another key factor is that Argentina is falling behind Brazil in the application of technology. In this regard, Brazil’s 1997 Cultivar Protection Law stimulated significant research and development in genetic improvement of soybean varieties, with registrations peaking in 2023. Argentina, on the other hand, has not seen the same level of technological advancement. See https://www.lanacion.com.ar/economia/campo/la-otra-brecha-calculan-que-la-argentina-podria-exportar-mas-de-us5000-millones-extra-con-la-soja-si-nid02082024/ (Spanish). #patents
INPI Signs Agreement with CAME: The agreement between Argentina’s IP office and the Argentine Confederation of Small and Medium Enterprises is intended to promote the dissemination of information about intellectual property. The signatories will collaborate on efforts to provide companies with the necessary knowledge and tools to protect their innovations and creations. See https://www.argentina.gob.ar/noticias/convenio-colaborativo-con-came (Spanish). #IPoffice
CHILE
Law Against Economic Crimes Soon to Be Fully Effective: The upcoming anniversary of Chile’s August 17, 2023 passage of the Law Against Economic Crimes, Law 21,595, means that a key provision in that law will soon take effect. The law itself is intended to increase white collar criminal penalties applicable to legal entities, including penalties for intellectual property-related crimes. The provisions that will soon go into effect provide that effective implementation of a Crime Prevention Model by a company may protect the organization from liability. Areas in which companies may run afoul of Law 21,595 include, for example, failure to establish IT policies to verify that software installed on company computers is properly licensed; failure to implement controls to prevent the misappropriation of third parties’ trade secrets; and failure to establish processes to avoid the infringement of third-party patents and utility models. The development and implementation of a Crime Prevention Model tailored to a company’s business activities can help to determine company-specific risks. See https://www.diarioconstitucional.cl/reportajes/sobre-la-nueva-ley-de-delitos-economicos/ (Spanish); https://lexlatin.com/opinion/propiedad-intelectual-riesgos-compliance-ley-delitos-economicos-chile (Spanish). #IPenforcement
PERU
INDECOPI Publishes Updated Guide on Pisco Denomination of Origin: The guide sets forth the regions of Peru in which pisco is produced, as well as the process for making pisco and the requirements that must be met for use of the pisco denomination of origin with a given product. Additionally, the guide lists the 508 companies and individuals authorized to use the pisco denomination of origin. See https://www.gob.pe/institucion/indecopi/noticias/999226-indecopi-actualiza-guia-practica-de-la-denominacion-de-origen-pisco-con-resenas-historicas-y-principales-infracciones-por-su-mal-uso (Spanish). #trademarks
URUGUAY
Uruguay Accepting Applications for Compulsory License of Cystic Fibrosis Drug: Entities interested in obtaining a compulsory license to import, sell, and market a cystic fibrosis drug patented by Vertex Pharmaceuticals have 20 working days from August 2 to apply. The Uruguayan government justified the decision to grant a compulsory license on the bases that (1) the government is required by Uruguayan court orders to provide the drug to approximately 80 patients, but doing so is financially unsustainable; (2) negotiations with the sole authorized Uruguayan supplier, Scienza Laboratory, have not achieved a sufficient reduction in price of the drug; and (3) Uruguayan law, in accordance with international treaties, authorizes the granting of compulsory licenses. An inter-ministerial commission comprising representatives of the National Resources Fund and several ministries, including the Ministry of Industry, Energy and Mining (which houses DNPI), will advise the executive regarding the compulsory license process. See https://www.gub.uy/ministerio-industria-energia-mineria/comunicacion/noticias/licencia-obligatoria-para-medicamento-alto-precio (Spanish). #patents
U.S. PUBLIC CONSULTATIONS
USPTO – Experimental Use Exception Request for Comments: Published June 28, 2024; closes September 26, 2024. See https://www.federalregister.gov/documents/2024/06/28/2024-14164/experimental-use-exception-request-for-comments (English).
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.
