Brazil: Brazilian Superior Court uphold decision issued by São Paulo State Appeals Court condemning importer of counterfeit products
The Brazilian Federal Revenue, Itajaí’s Port at Santa Catarina State, has retained 25,000 playing cards due to a suspect of trademark infringement.
COPAG DA AMAZONIA (“COPAG”), a Brazilian Playing Cards manufacturer and the owner of the trademark, was notified by the Customs and has confirmed the infringement situation.
After that, COPAG filed a lawsuit against the importer, a Brazilian company called BJPOP COMERCIAL LTDA, on the ground of trademark infringement.
The lower court judge has handed down a decision determining the defendant to refrain from violating COPAG’s trademark but has denied the claim for loss and damages because the counterfeit products were not commercialized within Brazilian territory.
After COPAG appealing, the São Paulo State Appeals Court has overturned the decision and condemned the defendant to pay moral damages and loss of profits that should be calculated by the most favorable criteria listed by the article 210, of the Brazilian Law of Industrial Property.
Against the decision issued by São Paulo State Appeals Court, the defendant has presented an appeal to the Brazilian Superior Court. Last August, 3th, the Brazilian Superior Court, however, has upheld the decision on the ground of the following arguments: at importations of counterfeit products, the damages are presumed and derive from the infringement act; hence, it is not mandatory to prove that the counterfeit products were commercialized or exposed to the consumer.
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