BRAZIL Law and Practice Contributed by: Lucia Ancona Lopez de Magalhães Dias, Maria Fernanda Saab Nersessian and Camila Emi Tomimatsu, Magalhães e Dias
All comparative ads must be supported by technical data and satisfy the following criteria: • always objective and verifiable; • not aimed at causing confusion with respect to distinguishing between brands; • not disparaging towards a competing product or brand; and • not taking undue advantage of another company’s brand (parasitism). 4.2 Competitor Copyrights and Trade Marks As long as a comparison is true, objective and verifi - able with respect to one or more essential elements of a product or service, expressly identifying the com - peting brand in the advertisement is authorised. The direct comparative campaign ran by Rayovac can be highlighted here; it accentuated Rayovac batteries’ purported superior durability and lower price than those of Duracell, which was regarded by the STJ as pursuant to consumers’ interests (REsp 1.668.550). CONAR has also ruled – in several cases of direct comparative advertising – that proof and substantia - tion are needed for comparative claims. Comparative advertising, however, cannot “depreci - ate” a competitor’s brand or image – as occurs, for example, when an advertiser alludes to personal cir - cumstances of a competitor that are unrelated to the compared products or services, or uses offensive expressions or images. 4.3 Challenging Comparative Claims Made by Competitors Competitors may challenge the content of compara - tive advertising before both CONAR and the courts – in the latter case by filing unfair competition lawsuits (Law 9,279/96). Remedies regularly claimed include cessation of the advertising and claims for damages – both moral and material – for trade mark infringement. One of the most recent leading cases in the Brazilian food industry concerns misleading and comparative advertising displayed at one of the world’s largest pro - cessed food fairs, where the discussion has expanded to digital media. The advertisement in question com - pared the new Heinz mayonnaise to the market leader (Hellmann’s, owned by Unilever), alleging a superior
production process (“100% cold process”) that would yield a “fresher and creamier” product (compared to other processed mayonnaises). The lawsuit is based on Heinz’s failure to substantiate the alleged superi - ority and demonstrate that the 100% cold process would provide a fresher and creamier mayonnaise. 4.4 Ambush Marketing The first law that addressed ambush marketing in Bra - zil was the General World Cup Law (Law 12,663/2012), created specifically to regulate major International Federation of Association Football ( Fédération Inter‑ nationale de Football Association (FIFA)) sporting events that took place in Brazil between 2013 and 2014. This Law provided for the practice of ambush marketing by association or intrusion. However, fol - lowing the conclusion of the events, such provisions are no longer in force. This topic, however, has already been addressed within the scope of CONAR’s self-regulation, through Article 31 of the CBAP, which condemns undue and illegitimate advertising profits obtained through means of “ride” and/or “ambush” – ie, through invasion of the editorial or commercial space of a communica - tion vehicle. CONAR treats the issue of ambush marketing broadly, protecting sponsors of all major events and not just those of sporting events – see Representations 73/24 (Lollapalooza Music Festival), 33/23 (Carnaval), 247/22 (FIFA World Cup Qatar 2022) and 191/23 (alluding to sponsored soccer teams). More recently, the General Sports Law (Law 14,597/2023) was enacted, introducing a definition of ambush marketing by association or intrusion (Arti - cles 170 and 171) as well as reproducing the rule already introduced by CONAR (Article 160, Section 5º). This Law, however, focuses on the sports sector, being applied by analogy and associated with self- regulation in other sectors (concerts, parties, music festivals, etc).
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