Minister Dias Toffoli’s report case is being judged by the plenary in the virtual session from October 13th to 23rd
O STF (Federal Supreme Court) analyzes, between October 13th and 23rd, the dispute between companies Gradient It is Apple for the exclusive use of the brand “iPhone” in Brazil. The case rapporteur is Minister Dias Toffoli.
The name registration request “Iphone” It was created by Gradiente in 2000, but it was only in 2008 that it was granted by Inpi (National Institute of Industrial Property). In 2007, Apple launched the iPhone, which gained worldwide recognition.
]By upholding the sentence given in an action filed by Apple, the TRF-2 (Federal Regional Court of the 2nd Region) ordered Inpi to annul the granting of the registration and its republication with the exception that the Brazilian company does not have exclusivity over the word Iphone alone.
For TRF-2, between the date of application and the granting of registration, the market underwent significant changes, and Apple had established, worldwide, including in Brazil, the use of the brand in identifying its cell phones. Thus, Inpi could not disregard the size of the “Iphone” took between those years.
Arguments
In its appeal to the STF, Gradiente argues that, when it filed the registration request, Apple was not yet operating in Brazil and, when launching its iPhone here, it should have consulted the Inpi to find out if anyone had already filed or obtained the registration, but he didn’t.
The company also stated that the TRF-2 decision relativized the fundamental right to the brand and the right to property.
Apple recalled that the ‘i-‘ product family (iMac, iBook, iPad, etc.) is related to the brand and argues that Gradiente can only use the full expression “Gradiente Iphone”, but not the term in isolation.
General repercussion
The thesis to be approved in this trial will be applied to other similar cases. The topic under discussion is the exclusivity of industrial property due to the delay in granting trademark registration by Inpi, simultaneously with the popularization of a product with the same name by a competing company.
When recognizing the general repercussion of the case (Theme 1,025), the STF took into account the constitutional principles of free enterprise and free competition.
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