By Frederico Cortez
The Internet is undoubtedly a new commercial avenue for consumption, attracting the attention of both customers and companies. In this digital environment, the market platform takes on the new concept of “digital shopping”, where it presents itself as a storehouse of brands for different consumer niches. In the same way that it shows its positive point, the market takes a big responsibility.
But what is a “market”? I explain. Imagine a large company that has a huge advertising, sales and product delivery structure available for any entrepreneur to put their product on this gigantic and infinite virtual shelf. Well, that’s how it happens in this mode of e-commerce (electronic commerce). One of the advantages of joining a virtual sales format lies in the trustworthiness of a name at the forefront of the market, where the consumer delivers their information in confidence in the credibility trajectory built by the company that created the market. From this symbiotic relationship, the connection between the end customer and the commercial partner of the market is born.
Therefore, as everything in life has two sides, the market attracts a serious amount of responsibility as a way of balancing its financial advantage with the values conveyed by the partner companies. Here, I am not only drawing attention to the issue of consumer rights, i.e. data leakage due to non-compliance with the General Data Protection Act, but primarily to the issue of industrial ownership.
Recently, the São Paulo Court of Justice condemned the Americanas market for misleading advertising, where the consumer claimed that the product offered on the market platform was fake. In the decision, the judge emphasized that “the consumer trusts the brand of a larger company to buy with a smaller unknown; the smaller company takes advantage of the reputational status of the larger company to run its business; finally, the large retailer profits from this approach and from the use of its brand“.
This is not the first case in which the judiciary assigns the responsibility for the origin of the product to the marketplace, which has the obligation to confirm the authenticity of what is traded on its digital platform. The fact is not the financial value of the discontinued operation, but a negative market-related asset that has the real potential to crowd out any investment in the sewer. As mentioned above, we have the problem of LGPD, where the obligation to secure the inventory of consumers’ personal data is shared with the market.
The Industrial Property Act is very clear about brand protection, and the great intelligence of the special legislation is that it covers both physical and digital media. In this way, the rule applies even without the right to an exception that “only the owner of the trademark is the person who first registers it in the National Institute for Industrial Property (INPI”).
Therefore, the responsibility of the market arises even for the criminal area, where ZPI (Law 9.279/96) in its art. 190 is clear and indisputable when it says that “A criminal offense against the registration of a trademark is committed by whoever imports, exports, sells, offers or exposes for sale, hides or has in stock.” in “a trademarked product that has been illegally reproduced or imitated by others, in whole or in part“. In other words, the interpretation of the law is in accordance with the scope of the market, where the belief is directed at the leaders of the modal e-commerce. Although the punishment is somewhat “mild”, detention from 1 (one) to 3 (three) months or a fine, the market brand will be most affected, which will embitter the stampede of business partners with its omission. does not enforce or monitor compliance with the industrial property policy on its digital platform.
The speed of the digital world is astonishing and at the same time inexorable to the unwary, and it is unacceptable that a large investment in the market threatens its legal security, despite the fundamental issue of industrial property. After more than a decade of professional intimacy in the Law on Industrial Property and Proceedings in Cases of Registration and Protection of Trademarks, unfortunately we still have an uncertain and shaky business profile when it comes to the importance of your business brand.
Even in spite of the timid national scenario regarding recognition of industrial property law compliance by businesses, I still have a spark of optimism for the existence of the Internet as a means of disseminating information and knowledge. Thus, the investor or entrepreneur in the market has broad access to what is really important before starting the business, ensuring the protection of the digital sales format and resulting in reliability and credibility for current and potential customers of the digital platform.
We always sell with legal certainty!
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