Archive for year: 2021

In Brazilian law, as a rule, the offended party who wishes to file a claim for compensation for damages, whether moral or material, is obliged to prove that this damage has in fact occurred. That is, in most cases, the offended person needs to prove that this unlawful act brought him some harm, and that, for this reason, he has the right to compensation to repair it.

This obligation occurs, mainly, so that the judge can analyze whether this compensation is even due, and, subsequently, so that he can arbitrate and calculate this compensation.

Thus, the rule is clear: Whoever claims compensation for a damage needs to prove it.

However, there are some cases and situations in which damage can be presumed, especially moral damage. The presumed damage, too, is known as “in re ipsa,” a Latin expression commonly used in legal redactions.

In these specific cases, the offended party (the author of the action), despite having suffered damage resulting from an illegal act committed by a third party, does not need to prove it in court, it is enough to prove the practice of the illegal act by the other party that has caused the damage of the offended party (be it personality, image, honor or privacy), and, in this way, the damage will be configured.

As this is a topic that always fosters new discussions, the Superior Court of Justice (STJ), is constantly analyzing and updating a list, a mere exemplary list, of cases in which it understands in which the damage will be presumed.

This constant study of the STJ is of paramount importance for the whole society, since the vast majority of cases listed by the superior Court as “hypotheses of presumed harm” are very common in the lives of Brazilians.

Recently, in October 2022, the STJ released a series of hypotheses in which the STJ recognized the application of the presumed damage, also explaining why this decision and how it can affect the lives of Brazilians. We will talk about some of them below:

Moral damage in the hypothesis of a foreign body in the food, without the need for it to have been ingested: the second section unified the jurisprudence of the private law classes of the STJ and considered the actual ingestion of the food contaminated by a foreign body – or the foreign body itself – irrelevant for the characterization of moral damage, since the purchase of the unhealthy product is potentially harmful to the consumer.

For the minister rapporteur Nancy Andrighi, “the distinction between the hypotheses of ingestion or not of unhealthy food by the consumer, as well as the swallowing of the foreign body itself, in addition to the hypothesis of effective impairment of their health, is of undeniable relevance at the time of quantification of compensation, having no effects, however, with regard to the characterization, a priori, of moral damage”.

Damage by the refusal of the health plan to authorize emergency medical treatment: the private law classes of the STJ have the understanding that the improper refusal of emergency medical treatment, by the health plan operator, causes compensation for moral damages, as it aggravates the situation of psychological distress and anguish of the beneficiary, being characterized the moral damage “in re ipsa”.

Damage by improper use of trademark: the STJ’s jurisprudence also understands that compensation is due for property damage (to be determined in settlement of judgment) and for off-balance sheet damages in the event that trademark infringement is perceived, regardless of concrete proof of material damage and moral upheaval resulting from illicit use.

With this understanding, the fourth class of the STJ maintained at R$ 15 thousand the compensation for moral damages to which the company” Sonharte Brasil” was condemned for the improper use of the trademark of another company in the same branch, “Sonhart”.

The original instance recognized that “Sonharte “used the expression for the dissemination of its services, so that the conclusion of the violation of the industrial property right of”Sonhart” was reached.

In this case, it was proven that there was unfair competition with the use of a name “practically identical” to that registered by the competitor “in the same field of economic activity, in order to mislead the consumer”.

Damage by the commercialization of personal data in a database: for the Third Class of the STJ, the availability or commercialization of personal information of the consumer in a database, without his knowledge, configures the hypothesis of moral damage “in re ipsa”.

In a recent judgment, the ministers kept in R$ 8 thousand the compensation due to a consumer who had his data disclosed by a company of solutions in credit protection and fraud prevention.

In this case, in addition to the maximum protection of the Consumer Protection Code, it is also necessary to observe and apply the LGPD – General Data Protection Law.

In an excerpt from the judgment we have the following: “the consumer has the right to be aware that information about him is being archived/marketed by a third party, without his authorization, because of this right two others arise that are guaranteed to him by the legal system: the right of access to stored data and the right to rectify incorrect information.”

According to the rapporteur Minister, failure to comply with the duties to process consumer data – including the duty to inform – gives rise to the right to compensation for the damage caused and to immediately cease the offense to the rights of the personality.

The discussion about the presumed damages is, in addition to being necessary, constant within our legal system, due to the necessary updating of the hypotheses for its configuration, reducing the duration of the processes, as well as guaranteeing greater legal certainty.

Giovanna Luz Carlos, – lawyer, graduated in law, from Centro Universitário Padre Anchieta (2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2020). Postgraduate in Civil Procedure from Faculdade Damásio De Jesus. Lawyer and leader of organizational and Cultural Development at TM Associados.

The term “Fashion Law ” has been highlighted in recent years, and many people may believe that it is a new branch of law, that is, a new subject to be studied, however, this is not the reality.

The term “Fashion Law” was created by American lawyer Susan Scafidi more than fifteen years ago to address legal issues specific to the world of fashion, a multibillion-dollar market that earns millions of dollars every year.

The first important milestone that determined the emergence of the concept of “Fashion Law” was the creation of the world’s first Center for the study of fashion as an industry, The Fashion Law Institute at Fordham University, there in 2010.

In Brazil, the fashion industry began to solidify from the economic issue, with the participation of the textile sector, through the Brazilian Association of textile and clothing industry (ABIT). Also, in 2012, the Fashion Business and Law Institute Brazil emerged, being a non-profit entity that assists in the resolution of legal conflicts related to fashion.

However, contrary to what it may seem, Fashion Law is not an autonomous branch of law, that is, there is no specific legislation to address issues in this market, so it is necessary to study labor law, tax, corporate, environmental, intellectual and industrial property, and an immersion in the world of contracts, linked entirely to Business Law, among other matters.

This is because, as mentioned, the fashion industry is currently a multibillion-dollar market that circulates through all branches of law, and the study and specialization in these areas is necessary to stand out in this competitive market.

Still, one of the most important issues for the concept of Fashion Law is Industrial property, and this is due to the need for protection of brands involved in the fashion market, since major brands are known worldwide, and, unfortunately, very plagiarized.

In fact, the study of the crimes involved in the fashion world is also very important, since currently the market needs to worry about plagiarism, piracy, counterfeiting and unfair competition, since these themes become recurrent, especially in the “fast fashion” Market (stores that only follow trends and produce large-scale pieces, not worrying about the creation of designers, the environment and the copyright of the pieces).

Unfair competition, in fact, is a concern in the daily life of almost every entrepreneur, and in such a competitive industry, which uses such aggressive strategies, betting on marketing, visual identity, advertising campaigns, etc. it would be no different. Moreover, as the fashion industry is extremely changeable and seasonal, unfair competition becomes even more evident in this market.

Another theme that has become essential for the fashion industry and Fashion Law, and that is used as a way to contain unfair competition, for example, is the concept of Trade Dress.

The term Trade Dress is defined as the set-image of a product, that is, it is the junction of the image and qualities of a brand, company or service and from this, consumers begin to identify the product exposed in the market.

Thus, in Trade Dress we can find the logos, a specific sewing of a clothing brand, a unique fabric or print pattern of a famous brand, and even the smell.

The biggest difficulty related to Trade Dress is protection, since it is not possible to patent a smell, for example, making these specificities of brands a great challenge in terms of their protection for experts in Fashion Law.

Finally, the fashion industry is directly linked to contracts, since almost all negotiations will be governed by contracts signed between the parties involved in the business.

With increasing globalization, contracts in the global sphere have become even more common, since it is often necessary to regulate the creation of an American artist, with a European brand, being produced on a large scale in Asia, using textile companies in Africa, for example.

In this way, the creation and regularization of all these operations with specific contracts, providing for all the clauses and points necessary for the protection of the brand, the stylist, the creation, and even the sale itself, becomes essential.

In addition to all this, the consumer and the Consumer Protection Code, when we talk about Brazil here, also becomes a latent concern, since all these operations are designed for a final destination: the wardrobe of a consumer, so that we cannot leave aside this branch of law that has the power to leverage or destroy the performance of a brand/company in national territory.

With this, we can conclude that Fashion Law is an extremely promising area in the national and global market, with operations in different branches of law, and that currently moves billions of dollars a year, becoming very attractive for multidisciplinary professionals who like challenges and dynamic and international operations.

Giovanna Luz Carlos, – lawyer, graduated in law, from Centro Universitário Padre Anchieta (2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2020). Postgraduate in Civil Procedure from Faculdade Damásio De Jesus. Lawyer and leader of organizational and Cultural Development at TM Associados.

End cycles, close doors, end chapters. A new year is a good opportunity to start over! Jump 7 ripples, wear white clothes, eat lentils, toast with champagne, eat grapes … plan!

New Year’s traditions invite people to reflect on the year that has passed and also to set goals/objectives for the year that is about to begin.

The human being needs new beginnings, whether at the end of a task, a day, a week, a month, a year. We have to “make peace” with our immediate past, to move forward. Our dependence on restarts has Daily implications, which we observe in various behaviors, such as at the beginning of a diet (no one starts a diet if not on Monday), habituality of exercise, among others.

With companies it is no different, so the beginning of the year is marked by meetings to present the objectives of the year and the planning to achieve them. This presentation at the beginning of the year is the “top of the iceberg”, the visible part, of a constant and essential work of “thinking about the future”!

Setting goals and structuring small tasks to achieve them is not an easy task, it needs the entrepreneur to know not only techniques for setting goals and planning, but to really know your company and its future (mission, vision and values are also essential), which includes: Team, customers, market, competitors and finance.

“If you know the enemy and know yourself, you need not fear the outcome of a hundred battles. If you know yourself but do not know the enemy, for every victory you win you will also suffer a defeat. If you know neither the enemy nor yourself, you will lose all battles.”Sun Tzu. The Art of War.

In addition to giving direction to the social exercise of companies, the goals have a very interesting point in common: they are all measurable. There is no point in setting an immeasurable goal, it is like jumping waves and asking for money (money does not come, I have already tried), we need work and strategies for the efficient use of the resource time!

When we bring this concept to companies, in some (more structured) the task is easier, now for others (with little professionalization, such as family businesses) it is an impossible mission if the executives have not done their homework.

Homework requires transparency, good financial health, engagement and legal compliance. The first 3 will only be solid and reliable if the latter is up to date, since compliance is ensuring that business practices are in accordance with internal statutes and regulations, as well as laws in general.

Legal compliance or, for those who like foreignness, “compliance”, since the Brazilian corruption scandal in 2015 (watch the movie “The Laundry”), continues on the agenda in the most diverse companies, both to improve corporate governance rules and to monitor how companies have acted in favor of social objectives (such as ESG – Environment, Social and Governance).

The concern with the social and environmental impact of companies is the size that the World Economic Forum launched at the 2020 Annual Meeting in Davos, a guide to metrics based on ESG values, reinforced practice in the following 2 (two) years.

The adoption of ESG practices has proven positive to attract investment, generate value for consumers and positive impact on workers, for this reason these practices have been included in business planning and should remain so for the next few years. The implementation of ESG practices is not a one-off, it takes a continuous effort. It’s like exercising, don’t just do it once!

The inclusion of ESG practices in business planning occurs through the effective implementation of measures concerned with its three pillars, namely:

Environmental compliance: company actions focused on the environment (here it is not only pollutant reduction, but also: concern with recycling, clean energy, conscious use of Natural Resources);

Social compliance: the organization’s attitude towards social factors such as: inclusion and diversity, Labor Relations, healthy work environment;

Governance compliance: independence and diversity of the board of directors, adequate remuneration policy, transparency, ethics, anti-corruption practices, data protection and Privacy.

Finally, although tempting for inclusion in the plan of goals and objectives of 2023, ESG practices must be effective, Greenwashing (having a different discourse from the practice), in addition to destroying credibility, can generate boycott campaigns, in addition to being considered as misleading propaganda.

Leonardo Theon de Moraes-lawyer, graduated in law, with emphasis in business law, from Universidade Presbiteriana Mackenzie (2012), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2012). Postgraduate and Specialist IN Business Law from the São Paulo Law School of the Getúlio Vargas Foundation (2014), Master in political and Economic Law from the Mackenzie Presbyterian University (2017), author of books and articles, Lecturer, University professor and member of the São Paulo Lawyers Association (AASP). Founding partner of TM Associados.

Recognized as a moral and loyalty obligation, the non-competition or non-compete clause, in general, restricts the performance of the parties to a contract so that one does not carry out activity considered competitive to the other. This clause is commonly used in purchase and sale of shares (M&A), in which it aims to protect and maintain the financial and operational viability of the business, and can be applied in various market segments and in different situations.

In such purchases and sales of shares, for example, it has become quite common to oppose the non-compete clause, restricting, by means of it, by the will of the parties, competing activities between the seller and the buyer for a certain period of time and in a certain segment, thus reducing the risk that the investment of this operation is not satisfactory to the parties due to possible competition.

Although they seem simple, non-compete clauses have requirements for their validity, such as: predetermined duration, delimitation of territory and activity. In addition to these requirements, the non – compete clauses are also accompanied by an arbitrated indemnity in sufficient amount to compensate the individual for the period in which they are prevented from acting as a result of it, being recognized by the doctrine as a moral and loyalty obligation, thus pricing the non-competition of these partners, who cease to integrate the corporate framework and are prevented from acting in the market.

It is important to note that there are several types of no – compete clauses. The most common is concerned with restricting the performance of directors and/or controllers of companies, for a period of time, within a certain segment, providing that they will not be able to act in businesses similar to that divested and/or that they were part of.

A practical example would be the purchase of a company creating urban mobility applications. The controller and / or programming director of the application and all its intelligence knows the entire programming system of this, its strengths and its points that could be improved, in addition to having market knowledge. It would not be fair that this controller and/or director, a month after the purchase of this company, went to work for its largest competitor or engaged in an identical project.

However, despite the competitive restriction, for the validity of the clause, as mentioned above, in addition to specifying the activity and time, the non-competition clause must provide for sufficient compensation to compensate the individual for the period in which they are prevented from acting as a result of said clause.

There is also the possibility of the institution of non-compete clauses for the restriction of the practice of certain activities between legal entities and/or companies linked to them. It is a widespread practice between the parties, that is, the parties expressly stipulate the restriction that must occur.

This concern, present in every non-competition clause, in expressly delimiting the details of the restriction, occurs because these end up directly restricting free competition[1] and free initiative[2], both constitutionally established principles.Thus, it is necessary that the non-compete clauses be interpreted in a restrictive manner, due to reasonable concern of a possible “expansion” in its interpretation, imposing restrictions on those who have committed themselves through it that are not expressly mentioned in the agreement.

In this way, it is understood that the application and interpretation of these clauses must always be restrictive, not least because the clauses will always be interpreted in favor of constitutional freedoms (free initiative and free competition), and the parties cannot be obliged not to undertake or not to compete beyond the limits expressly agreed therein.

The Brazilian courts have already moved towards a peaceful understanding in this regard, analyzing cautiously what were the limits agreed between the parties, so that the non-compete clauses are not interpreted extensively, but restrictively and only pay attention to what was agreed and the way it was agreed, thus respecting the constitutional principles already mentioned.

A judgment that is worth mentioning is from 1911, from the Court of Justice of the state of São Paulo, in which the bad faith of a merchant who after the sale of his store to a third party, established with him that he could not have the installation of another store on Consolação Street was discussed. However, the merchant installed a new store on a street close to that mentioned.

The court understood that there was no bad faith of this merchant, who initially sold his store, since the parties freely restricted the territory in what would be the “Forbidden Zone” of the new store facility, and the terms were clear: on Consolation Street. Since at the time a greater restriction was not made (a radius counting from Rua da Consolação, for example), the merchant who felt injured could not charge for something not expressly provided for in the contract once agreed.

Thus, the non-compete clause must always be interpreted in a restrictive manner, taking into account what is expressly agreed between the parties and in respect of the principle of Pacta Sunt Servanda.

Giovanna Luz Carlos-lawyer, graduated in law, from Centro Universitário Padre Anchieta (2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2020). Postgraduate in Civil Procedure from Faculdade Damásio De Jesus. Lawyer and Administrative Coordinator of TM Associados.

Leonardo Theon de Moraes-lawyer, graduated in law, with emphasis in business law, from Universidade Presbiteriana Mackenzie (2012), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2012). Postgraduate and Specialist IN Business Law from the São Paulo School of Law of the Getúlio Vargas Foundation (2014), Master in political and Economic Law from the Mackenzie Presbyterian University (2017), author of books and articles, lecturer, Professor in undergraduate, MBA and Executive Education at FIPECAFI and member of the São Paulo Lawyers Association (AASP). Founding partner of TM Associados.

<[1] the principle of free competition, which is described in Article 170, item IV of the Federal Constitution of 1988, comes to complement the idea of Free initiative, that is, this principle will ensure competitiveness in the market, guaranteeing equal rights for all, and thus allowing anyone to explore any commercial activity, except for any legal impediments.
[2] Free Will and freedom in the choice of an economic activity, as well as the freedom to choose the means by which one intends to achieve this economic activity.