Food manufacturer that usurped competitor's brand will pay for lost profits

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The Industrial Property Law (Law 9,279/96), in article 129, states that brand ownership is acquired through registration issued by the National Institute of Industrial Property (Inpi), which guarantees the holder exclusive use throughout the national territory. And item III of article 130 of the LPI guarantees you the possibility of safeguarding your material integrity or reputation.


Based on these provisions, the 5th Civil Chamber of the Court of Justice of Rio Grande do Sul confirmed the sentence that recognized the improper use, by a competing company, of the traditional trademark "Lebon". The brand identifies a portfolio of food products manufactured by JBS, after it incorporated the Rio Grande do Sul food group Doux-Frangosul.

With the victory in the second instance, the defendant, Lebom Alimentos S/A, based in Campina Grande (PB), can no longer use the word "Lebom" in its products or in its business or commercial name. You will also have to pay compensation for material damages, in the form of lost profits, in an amount to be determined in the settlement of the judgment, to the legitimate owner of the "Lebon" brand.

"Therefore, the defendant must repair B2B Lead the material damage caused in relation to the loss of profit, which depends on effective demonstration of what was no longer obtained as a result of the simultaneous operation of another similar brand, whose registration was cancelled, which will be possible to assess through technical expertise and examination of the accounting books, taking into account the revenue of both companies, in order to determine fair compensation for the improper use of trademark law", wrote the Appeal's rapporteur, judge Jorge Luiz Lopes do Canto, in the ruling.

Lack of distinctiveness
As with the court of origin, the panel considered compensation appropriate, since Inpi had extinguished the registration of the "Lebom" brand and the legality of the administrative act ended up being maintained by decision of the 31st Federal Court of Rio de Janeiro ( process 0017679-19.2015.4.02.5101). In other words, on the merits, the issue was resolved.



In the action, the Federal Court's ruling noted that the mere replacement of the letter "N" by the letter "M" – "Lebom" versus "Lebon" – is not enough of a difference to nullify the demand, in addition to the phonetics being identical.

Judge Márcia do Amaral Martins, from the 1st Civil Court of the District of Montenegro, recalled that the LPI regulated the protection of the right to intellectual property in articles 2 and 3, while article 129 enshrines the principle of territorial protection, which guarantees the company registered trademark holder its exclusive use throughout the national territory.