BRAZIL Law and Practice Contributed by: Ana Paula Affonso Brito and Maria Eduarda de O Borrelli Junqueira, Montaury Pimenta, Machado & Vieira de Mello
zil, material damages related to infringement of industrial property rights are due regardless of proof of actual loss, and that once the infringe - ment is attested, damages will follow. 5.5 Legal Costs The applicable law for legal costs recovery is the Brazilian Code of Civil Procedure. According to Section 82 of the Code, the losing party must reimburse the legal and procedural fees which were paid in advance on the lawsuit. With the exception of free legal aid, parties are responsible for bearing the expenses of the acts they perform or request in the proceedings, pay - ing them in advance, from the start until the final judgment or, during its enforcement, until there is full satisfaction of the right recognised in the instrument. Section 1 – The plaintiff must advance the expenses relative to the act which the judge determines, ex officio or at the request of the public prosecutor’s office, when the latter inter - venes as guardian of the law. Section 2 – The decision on the merits will require the losing party to reimburse the suc - cessful party for the expenses advanced. The legal fees are the expenses with court fees (such as those which must be paid when the lawsuit is filed, as well as some types of appeal) and the procedural fees include the amount expended by the successful party on techni - cal assistance, travel expenses, witness travel allowance, and court expert fees, all in accord - ance with Section 84 of the Code. The losing party must pay the counterparty’s (successful litigant’s) attorney’s fees, which may vary from 10% up to 20% of the value of the
claim, as per Section 85 of the Code, which sets forth that the decision on the merits will order the losing party to pay the fees of the successful party’s counsel. However, attorney’s fees set by the judge to be reimbursed are unrelated to the attorney’s fees paid by the parties during the lawsuit. This amount set by the judge is based upon a per - centage over the value of the claim, and goes strictly to the successful party’s attorneys, as a type of “award” for the victory. 5.6 Relevance of Claimant/Plaintiff Conduct to Relief Shame litigation can be addressed to the Bra - zilian Economic Defence Council ( Conselho Administrativo de Defesa Econômica , or CADE) through a very specific proceeding, and judges can also apply bad-faith litigation fines, based on a percentage of the amount in dispute. Trade mark and trade dress disputes in the life sciences and pharma sector are common before the Brazilian courts, either in infringement or nul - lity actions. When it comes to trade marks, in the administrative sphere, Anvisa exercises an addi - tional barrier to registration, specifically aimed at analysis of the graphic and phonetic distinctive - ness regarding other pharma products, regard - less of the examination process by the BPTO. The reason for this is the public agency’s concern about preventing confusion among consum - ers between products/drugs aimed at different treatments. In this sense, Anvisa has established some resolutions, in addition to Law 6.360/76, to prevent the adoption of names, designations, 6. Other IP Rights 6.1 Trade Marks
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