BRAZIL Law and Practice Contributed by: Gabriel F Leonardos, Claudio Barbosa and Viviane de Medeiros Trojan, Kasznar Leonardos Intellectual Property
The Superior Court of Justice (STJ) has nation- wide jurisdiction and hears challenges address- ing alleged violation of federal statute (eg, the LPI) from the State Courts of Appeals and the Federal Courts of Appeals. The Supreme Federal Court (STF) is the highest court in Brazil and has jurisdiction over patent cases where they concern constitutional mat- ters. Therefore, the courts with jurisdiction over pat- ent litigation are: • at first level, the trial court (state or federal); • at second level, the Court of Appeals (state or federal); and • at the highest levels, the Superior Court of Justice (STJ) and the Supreme Court of Jus- tice (STF). Specialised IP Courts While not uniform nationwide, many courts han- dling patent cases employ specialised judges or panels for IP matters. The Federal Court of Appeals for the 2nd Circuit (TRF2) has two specialised panels, each with four appellate judges overseeing IP cases. At the federal trial level, five courts handle only IP and pension law cases. The Federal Court of Appeals for the 1st Circuit is emerging in IP matters, with four panels of three judges each, though their specialisation extends beyond IP. In Brasilia, the Federal District, two federal trial judges focus specifically on IP cases. In state courts, the São Paulo State Court of Appeals has a highly skilled IP body, with eight specialised business trial courts (two in cen- tral and six in regional areas) and two business appellate courts. The State Court of Appeals
of Rio de Janeiro is establishing a specialised IP chamber and has nominated three appellate judges for the role. At the trial level, seven busi- ness courts handle IP cases. 2.4 Specialised Bodies/Organisations for the Resolution of Disputes Although the Brazilian Civil Procedure Code (Law No 13,105/2015) encourages parties to settle, and provides that judges, attorneys and other stakeholders shall stimulate ADR proceed- ings, there is no specialised body in ADR for IP matters within the courts. The most prominent and the only specialised chamber for dispute resolution in Brazil regard- ing IP matters (including domain name conflicts), named CSD–PI, is managed by the Brazilian Association of Intellectual Property (ABPI) – the Brazilian branch of AIPPI. 2.5 Prerequisites to Filing a Lawsuit In Brazil, patent infringement lawsuits can be filed without prerequisites, such as prior nego- tiations, under the Civil Procedure Code. How- ever, right-holders often issue warning letters to establish the date the offender was notified, which is crucial for future indemnification claims. 2.6 Legal Representation In Brazil, parties in IP cases must be represent- ed by a lawyer and cannot act independently in court. Foreign companies, whether or not headquartered in Brazil, can file lawsuits if rep- resented by a Brazilian attorney. A bond may be required for foreign companies asserting claims (see 8.3 Responsibility for Paying the Costs of Litigation ). 2.7 Interim Injunctions Interim injunctions are available. An interim injunction may be granted by the judge when
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