Source: Paran @ Shop - 16/09/2010

In addition to piracy / counterfeiting, consumers should pay attention to equipment imported by unauthorized companies, a process known for importing without consent; generally these companies are not responsible for any problems that these products may present

In recent years, it is observed that the market for counterfeit products in the country has increased in the same proportion as the market for original luxury products. “The more luxury products available on the market, the more the counterfeit luxury products segment will increase,” says André Mendes Espírito Santo, senior lawyer at LO Baptista Advogados, an expert in intellectual property. “To give you an idea, the original Brazilian luxury market had revenues of US $ 6,23 billion in 2009, an increase of 4% (dollar) and 12% (Real) in relation to 2008, according to a survey carried out by MCF Consultoria & Conhecimento and GfK Brasil ”, he adds.

Also according to the survey, the original Brazilian Luxury market is expected to increase its turnover by 22% in 2010, reaching the amount of US $ 7,59 billion. The numbers are also positive in relation to investments. The sector invested even more last year, jumping from the US $ 950 million reached in 2008 to the US $ 1,24 billion in 2009. In 2010, even with the forecast of a small decrease in the value of investments in the sector - which will pass, according to the survey, to US $ 1,21 billion -, the Luxury market is very optimistic with the forecast of sharp growth in sales. "That is, we can deduce that the piracy market will also increase," says André.

Pirated products and other goods that cannot be put up for auction, donated to non-profit entities or incorporated into public assets, as they are in disagreement with the rules that regulate their consumption or use, are subject to destruction. According to the Federal Revenue of Brazil, in 2009, approximately R $ 300 million in products of this nature did not enter the domestic market. They were destroyed, avoiding a high potential risk to the health and safety of people and the environment, thus preserving industry, commerce and national jobs.

The seizures of goods carried out by the Federal Revenue Service of Brazil (RFB), in the first half of 2010, reached the result of R $ 673.901.981,26, which corresponds to an increase of 6,70% in relation to the same period 2009. Such seizures originate in customs clearance, inspection, surveillance and enforcement activities. The goods with the highest volume of seizures were vehicles, cigarettes, electronics, unrecorded media, sunglasses, watches, vehicles and clothing.

The lawyer also raised other information regarding this sector. Piracy was defined by the International Criminal Police Organization (Interpol) as the crime of the century. According to estimates by the National Forum against Piracy and Illegality, piracy moves 10% of all world trade, that is, US $ 580 million, surpassing the US $ 370 billion of drug trafficking in the world. A study by Unafisco - National Union of Tax Auditors of the Federal Revenue, based on data from the Ministry of Justice of 2005, points out that Brazil loses about R $ 30 billion per year in tax collection and 2 million formal jobs leave generated by virtue of piracy. “We think that this number may be even greater, given the scale of the issue,” says Edson Luiz Vismona, executive president of the Forum.

According to a recent survey conducted by Ibope, in São Paulo, 70% of people who bought pirated products in the last 12 months knew that they were buying illegal goods. “In other words, according to the survey, the purchase is conscious and intentional. This consumer, therefore, is not being deceived. He not only buys the product knowing that it is a counterfeit, but he also knows the implications of his choice, from the aspect of quality to illegality. Only 30% of the interviewees in fact were unaware of the origin of the product ”, points out the lawyer.

André Mendes also notes that there are many cases in which the consumer even has the resources to purchase a specific product, but prefers to buy the counterfeits in greater quantity than just an original. "It is a phenomenon, in short, in which the consumer is more concerned with showing the product's brand to third parties than consuming a product for its unquestionable quality and durability", he highlights.

Import without consent

Another situation that moves the Brazilian parallel market, but which is not considered piracy / counterfeiting, is the so-called import without consent. It consists of the action of independent agents that import identical products (same brand / model) to the goods offered in the domestic market by national producers or by brand representatives. Many technology companies, such as Canon, Brother and Xerox, suffer from this type of action with their multifunction printers, for example.

Even though this import follows all the formal procedures of international trade, and until eventually they collect the taxes due, it does not have the explicit consent of the legal representative of the companies in Brazil or their foreign headquarters. In addition, the companies that imported the product are not responsible for any failure that the equipment may present, in addition to injuring the so-called intellectual property. In other words, the companies that own the brand / model will have to deal with this issue, suffering eventual financial impacts.

André also calls attention to the equipment that is produced to last at least 10 to 15 years, but because of the evolution of technology, they are “discarded” within a year or two. "These equipments are sent to the so-called emerging countries, such as Brazil and India, and end up competing with the existing products of the same brand, creating a serious economic imbalance in the domestic market and implying true unfair competition", he explains.

The owner of the trademark, as guaranteed by the Industrial Property Law, holds the exclusive right to exploit it in the national territory, thus being able to prevent third parties from carrying out activities related to it, such as the importation of products or goods without a license. brand owner. Finally, prevent any form of commercial exploitation of original goods from imports without consent. “This is because, in our country, as in many others, the import of products for sale is prohibited without the corresponding authorization from the trademark owner”, points out André Mendes.

LO Baptista Advogados has a tradition in the area of ​​intellectual property, mainly in the legal advice of companies that face the classic problems of piracy / counterfeiting, smuggling, counterfeiting, importation without consent, among others. It has already taken a series of judicial measures in order to restrain (preventively or coercively) companies that act in illegality. Major actions to search and seize counterfeit equipment have already been sponsored by the office.

There are already more than 40 lawsuits, many with a final decision (final and unappealable), in which the Brazilian judiciary prohibited national companies from importing and / or selling original products without authorization from the trademark owner or third party with your consent.

The firm has been successfully leading an important action to combat so-called imports without consent. Representing multinationals with marked products in Brazil, the firm has, in recent years, been successful in several National Courts (in the States and in the Superior Courts), working to combat the illegal import of marked products.