INJUNCTIONS AND THE BRAZILIAN IP LAW

In Brazil, patent and trademark owners may obtain injunctions against infringers to stop illegal activities, such as the manufacturing, launching, use, reproduction, offering for sale, sale, or import of the infringing products in the market, even before a final decision is issued by the court.

There are two types of preliminary injunctions: (i) a precautionary action (ação cautelar), aiming at preventing irreparable harm caused by the infringement and the delay in having a final decision from the court; and (ii) an anticipated remedy (tutela antecipada), which has the effect of anticipating the final decision because of very strong evidence that plaintiff’s claim is well-grounded. It should be noted that the injunction granted in a precautionary action has the sole purpose of maintaining the current state of affairs (that is, the enforceability of the industrial property right, and consequently the cessation of the infringement), while the merits of the infringement claim are being analyzed under ordinary infringement proceedings. In turn, the anticipated remedy functions as if the merits of the claim had been analyzed – in sum as if the lawsuit had already reached its very end.

In both cases, strong evidence of the alleged infringement and potentially irreparable harm to the plaintiff must be submitted to the judge. If such evidence can be produced, an injunctive remedy can be obtained without much difficulty, since it can be reversed at a later stage (that is, if the defendant is ultimately able to convince the judge that its products do not violate the patent right, that the patent right is null, or any other similar argument).

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