“Hope”
摘要
The purpose of protecting the use of trade marks – guaranteed by the provisions of Art. 5(XXIX) of the Constitution and regulated by Art. 129 of the Intellectual Property Law (IPL) – is twofold: on the one hand, it is to protect trade marks against (I) usurpation, (II) parasitic economic gain, and (III) unfair diversion of another’s customers; and, on the other hand, it is to prevent (IV) consumers from being confused regarding the origin of a product (Art. 4(VI) of the Consumer Protection Code). Article 195(III) IPL states that whoever employs fraudulent means to divert another’s customers for one’s own or another’s benefit commits the crime of unfair competition. The use of a trade mark as a keyword to redirect consumers of goods or services to a competitor’s link is a fraudulent means of diverting customers, as it facilitates parasitic competition and confusion among consumers. Under Art. 32 of Brazil’s Code on Self-Regulation in Advertising, advertising is not comparative when the act in question (I) causes confusion among consumers, (II) constitutes unfair competition, or (III) takes unfair advantage of a competitor’s prestige. Article 209 IPL guarantees the injured party the right to damages arising from acts of this nature, especially when they harm the party’s reputation or business, or create confusion among commercial or industrial establishments or service providers, or between goods and services offered for sale. Non-material damage caused by infringement of a trade mark is considered res ipsa. This means that there is considered to be damage if it is merely proven that there has been unlawful conduct; there is no need to prove concrete harm or provide evidence of actual non-material damage. The search engine provider has active control over the keywords it sells, so that it is technically possible to avoid the infringement of intellectual property. This does not require mass surveillance or any restriction of freedom of expression, but merely greater diligence when offering digital advertising services. When analysing the civil liability of internet providers for acts of unfair competition in the sponsored links market, it is not the content generated on the sponsored website that gives rise to an obligation to indemnify, but rather the way in which the search engine provider sells its advertising services by presenting search results that foster parasitic competition and confuse consumers. There is therefore no need to apply Art. 19 of the Internet Framework.