Newsletter IP and Data Protection | November 2020

INTELLECTUAL PROPERTY

Department store did not infringe copyright when selling products with the sentence “No Bad Days” used by an artist

In November 2020, the 11th Civil Circuit of Brasília, of the Federal District and Territories Court of Appeals (TJDFT), dismissed a lawsuit filed by a visual artist, against Marisa’s chain store, for alleged copyright infringement of his work entitled “No Bad Days”.

In the proposed action, the plaintiff claims to have created an artistic work with the aforementioned phrase that gained prominence in digital media. In order to propagate this motivational message and, because of the success of the work, the artist started to use the expression “No Bad Days” for commercial purposes, stamping it on several products, such as mugs, posters, cushions and blouses.

However, the plaintiff states he was surprised to see that Marisa’s chain store was also selling children’s shirts with the same sentence at very low prices, improperly, which he claims to have directly affected the sales of his products.

In view of this, the artist requested the granting of an injunction relief to prohibit the store from producing and selling any product with the expression “No Bad Days”, as well as requested that the defendant was sentenced to destroy the clothes stamped with the phrase, disclose the authorship of the work as owned by the artist, in addition to the payment of indemnity for moral and material damages for violation of their copyright.

Marisa’s chain store, in its defense, claimed that the aforementioned expression is already in the popular domain and because of that does not deserve copyright protection. Therefore, the posts made by the artist on his social networks would not prove that the phrase is his own.

After the distribution of the case, the judge rejected the injunction relief and dismissed the plaintiff’s requests, as he understood that the originality requirement of his artistic work was missing, so that there was no protection by copyright. In this sense, the magistrate also pointed out that copyright does not protect the idea by itself, but by the way in which it is presented. Thus, even if the content of the idea is the same, there will be no damage to the author’s right if a new form is adopted for the expression of the idea. Finally, the judge ordered the plaintiff to pay court costs and attorney’s fees.

 

DATA PROTECTION

Members of the Board of Directors of the National Data Protection Authority (ANPD) are approved by the Senate

On October 20, 2020, the plenary of the Federal Senate approved the names indicated by the government for the Board of Directors of the National Data Protection Authority (ANPD), following the voting procedure by simple majority of the senators present.

Therefore, it is already confirmed that the ANPD Board of Directors will be composed of the following members: Arthur Pereira Sabbat, Miriam Wimmer, Nairane Farias Rabelo Leitão, Joacil Basilio Rael. Waldemar Gonçalves Ortunho Junior, current president of Telebras, will assume the position of Director-President of the Board of Directors, after having his nomination approved with 39 votes in favor and 5 against.

The term of the members of the Board of Directors will be 4 (four) years, as provided for in the General Data Protection Law (“LGPD”). However, exceptionally, at this first moment, such terms will be from 2 (two) to 6 (six) years, with the purpose of renewing the members of the ANPD Board of Directors.

In this sense, this is another step towards the operationalization of the ANPD, in continuity with a process started in August with the publication of Decree No. 10,474/2020, which approved and regulated the regulatory structure of the National Authority, and its board of commissioned positions and nominated trust functions.

 

The ANPD is an integrated body of the Presidency of the Republic, which is endowed with technical and decision-making autonomy, with jurisdiction over the Brazilian territory and headquarters in the Federal District. Among its competences, the ANPD will be responsible for ensuring the protection of personal data, under the terms of the LGPD, and editing regulations and procedures on the protection of personal data and privacy. This Authority will also have the important function of monitoring the compliance with the LGPD rules and applying its sanctions, which will only be in force in 2021, as well as creating channels of communication with society and promoting cooperation initiatives with data protection authorities of other countries.

In case of any doubts about this subject, please do not hesitate to contact us.

 

KEY CONTACTS:

Paula Mena Barreto
Partner
T: +55 21 3262-3028
E: paula.menabarreto@cmalaw.com

Manoela Esteves
Associate
T: +55 21 3262 3042
E: manoela.esteves@cmalaw.com

Thaissa Lencastre
Associate
T: +55 21 2217-2041
E: thaissa.lencastre@cmalaw.com

Ana Luisa Bastos
Associate
T: +55 21 2217-2049
E: ana.bastos@cmalaw.com