On July 1, the 12th Federal Court of Rio de Janeiro issued a ruling in which it determined that the expression “língua de gato” (“cat’s tongue”) can be used by any entity to describe chocolates with an oblong, flat shape. The decision was made in response to a lawsuit filed by Allshow Empreendimentos e Participações Ltda, the parent company of Cacau Show, against Nibs Participações Ltda, which belongs to the Kopenhagen group, and the Brazilian National Institute of Intellectual Property (INPI ). The controversy began when Cacau Show intended to launch the product “Panettone Miau”, describing it as “Classic Panettone with milk chocolate in the shape of a cat’s tongue”.

The ruling emphasized that the expression “língua de gato” (“cat’s tongue”) is widely recognized internationally to describe elongated chocolates and should not be the exclusive use of Nibs. The jusge responsible for the case also noted that Kopenhagen had failed to demonstrate the distinctiveness of the trademark when registered with the INPI. Cacau Show argued that the term was introduced in 1892, derived from a German term used by foreign manufacturers.

For its part, Nibs Participações S.A. argued that the expression “língua de gato” was not in generic use in Brazil and that it had held the exclusive use since 1940. They also claimed that Cacau Show was unduly trying to benefit from the trademark in order to associate its products with those of Kopenhagen.

The judge in charge of the trial concluded that there was insufficient evidence of acquired distinctiveness for Nibs’ “LÍNGUA DE GATO” trademark and accepted Cacau Show’s position that the term is in common use and not exclusive. Therefore, it ordered the cancellation of the registration of the “LÍNGUA DE GATO” trademark related to chocolates, based on Art. 124, VI of the Industrial Property Law (Art. 124. The following are not registrable as trademarks: VI – a sign of a generic, necessary, common, vulgar or simply descriptive nature, when it is related to the product or service to be distinguished, or one that is commonly used to designate a characteristic of the product or service, in terms of nature, nationality, weight, value, quality and time of production or provision of the service, unless it is sufficiently distinctive).

Font: Araripe

The National Institute of Industrial Property (INPI) recently published Ordinances/INPI/PR No. 26/2023 and No. 27/2023, bringing important changes to the procedures for registering Industrial Property and franchising contracts.

The new rules, the result of deliberations held in December 2022, aim to simplify and streamline the processes for registering and recording contracts, boosting innovation and the protection of Industrial Property in the country.

In another post, we talked about the main changes discussed, such as “E-notarization” and “e-apostille” in cases of digital signatures without ICP-Brasil Certification, the presentation of bylaws in articles of association or articles of incorporation of Brazilian companies and the licensing of non-patented technology (“Know-how”).

Want to know more about how these changes apply to your business? Contact us and speak to one of our specialist lawyers.

#advogado #franquia #araripeadvogados #advogados

When producing content on the Internet, it is necessary to think about various legal factors so that third party rights are not infringed, especially with regard to Copyright.

It is imperative to identify, for example, in the image used, the origin of the publication, as well as the type of license of use, checking if there is permission for commercial use or for modifications, if applicable.

If any violation is found, it is possible to notify the alleged infringers to cease the improper use of the work, but any financial compensation must be negotiated between the parties or explored in a separate legal action, in which the alleged infringer is guaranteed the right to an adversarial proceeding and a full defense.

The unilateral imposition of a fine for improper use of copyrighted works in Brazil is therefore not accepted by the national judiciary, which recently ruled that it is impossible to collect the fine without an agreement or contract, since such unilateral collection is not regulated by the Brazilian Copyright Law.

The ruling, from the 2nd Special Civil Court of Cuiabá, of the Mato Grosso Court of Justice, also condemned the company representing the images’ author to pay compensation for moral damages for undue collection.

Case No: 1061742-57.2022.8.11.0001
Plaintiff: MARIA APARECIDA TEIXEIRA LYRA
Defendant: PICRIGHTS BRASIL – INTERMEDIAÇÃO DE NEGÓCIOS DE IMAGEM E DIREITO AUTORAL