In the current moment, in which entrepreneurship and startups grow every day, it becomes more common to seek to register your trademark and patent your product.
Both services are provided by the National Institute of Industrial property – INPI, and are based on Law No. 9,279/1996 (Industrial Property Law), but do all entrepreneurs know the real difference between the trademark and the patent?
The brand is the showcase of your business or the identity of your product/service, that is, it is the sign, the design, the name by which your business or product/service will be known by your customers and competitors.
Trademark registration prevents others from using it without your consent, that is, trademark registration is a protection for your business or for your product/service.
In addition, with the registration of the brand and over time, your brand can become more valuable, as is the example of Nike, McDonalds and other brands, which only with a simple design or symbol, it is already possible to identify its strength and significance in the market.
Trademarks may be registered for:
Products or services, that is, the mark is used to distinguish products or services from other identical;
certification, which is used to certify the conformity of a product or service with certain technical standards; and
Collective, which are the brands used to identify products or services that belong to the same entity, such as the P&G group, The Coca Cola Company, etc.
Brands can be composed of words (nominative), drawings and symbols (figurative), the combination of these elements or their own stylized spelling (mixed) or their shape (three – dimensional), such as the stylized bottle in Coca Cola’s Fanta soda-The Shape of the product bottle is part of your brand.
When a trademark is registered with the INPI, its use in Brazil becomes exclusive for 10 years from the date of Grant, and this period may be extended for successive periods of 10 years.
Patents, on the other hand, are a form of protection for innovative products/production methods. It is a protection to inventions, linked to new products, new technologies, new manufacturing processes etc.
Patent protection is granted for a certain period, and after this time, the invention loses its exclusivity in the commercial market and other companies can use it.
It is important to mention that once the patent is registered, it already becomes public. For this reason The Coca-Cola company never registered the formula of the famous soda, for example.
With the granting of the patent, there is the exclusivity of the commercialization and use of the product innovation as a whole, for a period of between 15 and 20 years, in addition to enabling commercial exploitation via licensing.
To be patentable, the invention must meet some requirements, such as:
Novelty: when the invention constitutes something unknown to the scientific community;
Inventive step: when the author of the invention demonstrates that the invention came through his effort, and not by mere chance;
Industrial application: it concerns the utility that the invention has, that is, the invention must be useful.
In conclusion, it is important to highlight what are the types of patents that exist, that is, what are their natures:
Of invention-when it is an original Act arising from the creation and effort of man;
Utility model – when there is an inventive act that improves the functioning of a product, or in its manufacture.
Both the trademark and the patent are destined to the INPI, and are controlled and supervised by this federal government body, so that the registration certificate is received, in the case of trademarks, or the patent letter, in the case of patents.
On average, the granting by the INPI can take about 3 years, only in exceptional cases that this period can reach 10 years (Case of patents of difficult complexities, for example), but, despite the delay, the importance of these registrations and protections stand out the waiting time.
In this way, despite the relatively long process for the concession, the protection it brings to entrepreneurs becomes even more important for the development of their business.
Giovanna Luz Carlos
Lawyer, graduated in law with emphasis in Civil Law from Centro Universitário Padre Anchieta – FADIPA (2019) enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP).
Differences between trademarks and Patents
In the current moment, in which entrepreneurship and startups grow every day, it becomes more common to seek to register your trademark and patent your product.
Both services are provided by the National Institute of Industrial property – INPI, and are based on Law No. 9,279/1996 (Industrial Property Law), but do all entrepreneurs know the real difference between the trademark and the patent?
The brand is the showcase of your business or the identity of your product/service, that is, it is the sign, the design, the name by which your business or product/service will be known by your customers and competitors.
Trademark registration prevents others from using it without your consent, that is, trademark registration is a protection for your business or for your product/service.
In addition, with the registration of the brand and over time, your brand can become more valuable, as is the example of Nike, McDonalds and other brands, which only with a simple design or symbol, it is already possible to identify its strength and significance in the market.
Trademarks may be registered for:
Products or services, that is, the mark is used to distinguish products or services from other identical;
certification, which is used to certify the conformity of a product or service with certain technical standards; and
Collective, which are the brands used to identify products or services that belong to the same entity, such as the P&G group, The Coca Cola Company, etc.
Brands can be composed of words (nominative), drawings and symbols (figurative), the combination of these elements or their own stylized spelling (mixed) or their shape (three – dimensional), such as the stylized bottle in Coca Cola’s Fanta soda-The Shape of the product bottle is part of your brand.
When a trademark is registered with the INPI, its use in Brazil becomes exclusive for 10 years from the date of Grant, and this period may be extended for successive periods of 10 years.
Patents, on the other hand, are a form of protection for innovative products/production methods. It is a protection to inventions, linked to new products, new technologies, new manufacturing processes etc.
Patent protection is granted for a certain period, and after this time, the invention loses its exclusivity in the commercial market and other companies can use it.
It is important to mention that once the patent is registered, it already becomes public. For this reason The Coca-Cola company never registered the formula of the famous soda, for example.
With the granting of the patent, there is the exclusivity of the commercialization and use of the product innovation as a whole, for a period of between 15 and 20 years, in addition to enabling commercial exploitation via licensing.
To be patentable, the invention must meet some requirements, such as:
Novelty: when the invention constitutes something unknown to the scientific community;
Inventive step: when the author of the invention demonstrates that the invention came through his effort, and not by mere chance;
Industrial application: it concerns the utility that the invention has, that is, the invention must be useful.
In conclusion, it is important to highlight what are the types of patents that exist, that is, what are their natures:
Of invention-when it is an original Act arising from the creation and effort of man;
Utility model – when there is an inventive act that improves the functioning of a product, or in its manufacture.
Both the trademark and the patent are destined to the INPI, and are controlled and supervised by this federal government body, so that the registration certificate is received, in the case of trademarks, or the patent letter, in the case of patents.
On average, the granting by the INPI can take about 3 years, only in exceptional cases that this period can reach 10 years (Case of patents of difficult complexities, for example), but, despite the delay, the importance of these registrations and protections stand out the waiting time.
In this way, despite the relatively long process for the concession, the protection it brings to entrepreneurs becomes even more important for the development of their business.
Giovanna Luz Carlos
Lawyer, graduated in law with emphasis in Civil Law from Centro Universitário Padre Anchieta – FADIPA (2019) enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP).
Vaccination of employees and its obligation in the face of Covid-19
Due to the emergency approval of the covid-19 vaccination by Anvisa, a discussion arose in the legal field about the possibility of the employer requiring its employees to be vaccinated against the disease, given that there are positions that do not understand the obligation (given the constitutional principle that no one will be forced to do something that is not defined in law), as well as there are positions that understand the requirement of mandatory vaccination, since it is the employer’s responsibility to ensure a safe work environment, the unvaccinated worker cannot put other workers at risk.
Given the numerous discussions on the subject, it is important to highlight the judgment of the STF (Supreme Court) in the sense that the state may determine that the vaccination of the population against the disease is mandatory, without invasive measures and the use of force to require immunization.
In parallel to the STF decision, the recommendation of the Public Ministry of Labor (MPT) is that companies make awareness campaigns about the vaccine and use dismissal for just cause as a form of punishment in the last case. In this way, according to the aforementioned body, workers who refuse to take the Covid-19 vaccine, without medical justification, may be dismissed for just cause.
This understanding of the MPT is based on the principle that vaccination is a common good, and it is up to employers to carry out awareness campaigns, involving workers ‘unions, in order to address the risk of contagion of the disease in prevention programs and include the vaccine among preventive measures to ensure workers’ health.
Therefore, it is necessary to inform that the guidance of the MPT is in accordance with the decision of the Supreme Court (STF), which decided that the government may impose penalties on those who refuse to take the vaccine, as well as with the CLT and various regulatory standards that seek to preserve the health and safety of workers.
In this sense, since the employer is the holder of the directive power related to the organization of labor standards provided for in internal policies, the creator of internal requirements for the hiring of employees and maintenance of their respective jobs, the applicator of punitive measures to employees (resulting from their noncompliance with internal standards) it seems logical to admit the employer’s requirement of vaccination of its employees, with the presentation of their vaccination certificate.
The absence of such proof may admit the adoption of disciplinary measures that may matter in a termination of the employment contract for just cause, resulting from a conduct of indiscipline and/or insubordination of its employees, since it may be applicable by analogy Article 158, sole paragraph of the CLT, which provides that the employer may penalize the employee who refuses to use PPE, since the use seeks to protect the work environment.
Given the above and according to the understandings of Jurists in this sense, it is important to make it clear that this is not a forced vaccination to be imposed on employees, but rather, restriction of rights to those who refuse mandatory vaccination, since the internal rules established by the employer have legal validity as long as they do not matter in abuse of
Of course, there may be employees who, for health reasons, such as pregnant women,
infants etc. they will not be able to be vaccinated, so that such a requirement on the part of the employer would become unenforceable. In any case, such situations should be analyzed by the employer, who should create alternatives for the provision of services of these employees, such as the transfer of these workers to work through the teleworking regime, etc.
According to jurists, the issue involving the mandatory vaccination of workers involves the use of common sense, discernment (without detracting from the issue of Public Health), the collective interest, and respect for business policies and the executive power of the employer, responsible for maintaining a safe and healthy work environment.
Finally, as already stated, the recommendation of the Public Ministry of Labor (MPT) is that companies carry out awareness campaigns and use dismissal for just cause as a form of punishment in the last case. In addition, the employer may also carry out with the corresponding unions, agreements or collective agreements regulating the matter about the vaccination of employees against Covid-19, procedures that will guarantee the employer greater legal certainty on the subject, in order to prevent the judicialization of the matter.
Geovana Carolina Silva de Andrade
Lawyer, graduated in law from Centro Universitário De Campo Limpo Paulista/SP (2017), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2018). Postgraduate in labor law and process from Faculdade Damásio De Jesus. Lawyer at TM Associados.
Draft home office policy
With the new outbreak of COVID-19, companies that have returned to work with their employees on site will have to re-establish the home office policy so that they can keep everyone safe.
Thinking about it, TM Associados is making available a draft home office policy, remembering that it must be adjusted according to the specificity of each case.
Download now
And remember, we offer effective advice for decision making and risk analysis. We provide our clients with the performance of a specialized legal department, inside and outside the company, giving all the necessary support, since, due to the current market demand, the problem is no longer worked on after it has occurred, but in a preventive way, in order to minimize errors and reduce risks.
Count on TM Associados to transform your business into a legacy.
First thoughts on the new bidding law.
The new bidding law, nicknamed NLL, law Nr. 14.133 / 21, more compiled sparse laws and decisions of Brazilian courts that innovated, and in truth, is another step in the search for Brazil’s participation as a full member in the OECD (Organization for Economic Cooperation and development).
The promise of enacting this law was to strengthen the integrity of government procurement systems. Governance and COMPLIANCE criteria were included in the law, allowing greater legal certainty to contractors, and seeking greater efficiency in the application of public resources.
What did she advance on?
Good advances in governance, with the following managerial elements to be implemented by the Public Power:
Annual hiring plan;
Preliminary Technical Study;
Competence management with segregation of duties, which consists of the separation of functions of authorization, approval, execution, control and accounting of operations, avoiding the accumulation of functions by the same server;
Risk management;
Electronic Contracting;
Preference for digital monitoring of works;
PMI (expression of interest procedure), which seeks by request to the private initiative the solutions of the Public Administration, suppressing the asymmetry of information between the Public Power and the market.
Reputation system with the creation of a positive record of suppliers who fulfill their contracts.
Good progress in Compliance:
requiring integrity programs in major hires;
establishment of the criteria for judging the proposals;
accountability of the manager in cases of clear and gross negligence for ” undue fault”;
Creation of the National Public Procurement Portal (PNCP);
What has been the impact of this law on the lives of companies and people?
The biggest impact for companies concerns the search for the guarantee that the bidding process will be fair, efficient, transparent, and accessible to all who are willing to participate in it. With clear rules, it brings legal certainty to participants, who will have the same opportunities in the competition.
For the citizen, the impact of this law seeks to guarantee the efficiency of the application of public resources, and this generates the expected best value for money, or better quality/price ratio, which means that at the lowest price the state will provide the citizen with a better structure, and a better quality public service.
How the trademark registration process works at INPI
The company already has knowledge of the importance of registering a trademark with the National Institute of Industrial property (INPI), to give relevance and protection to trademarks that represent a business, product or service.
However, even today there are many doubts about how the trademark registration process works, which is why this article aims to explain the step by step of the process, its deadlines and fees.
The first important point is to check if the trademark that is intended to be registered has not yet been registered, since equal trademarks will not be accepted by the INPI.
For this, it is necessary that a search in the INPI database be carried out, to consult the trademarks already registered, and those that do not appear there, (except those prohibited by law, such as the cases of high-profile trademarks and notoriously recognized trademarks, which the legislation prohibits registration) may continue with the registration normally.
It is also important that the brand has a defined sector, that is, that it has a specific classification, for example, restaurants, clothing stores, advertising agencies, etc. This is because, at the specific moment of the registration request, all these data must be informed to the INPI.
Another previous step is the definition of the nature and presentation of the trademark, that is, if it will be a trademark of a product, service, mixed or certification nature; and if it will have a logo, if it will have only the commercial name, or any other specification regarding its presentation.
When everything is set, it’s officially time to get your hands dirty. Originally the INPI charges two fees for registration, one at the beginning of the process and another at the end (when the trademark has already been granted for registration). However, if it is necessary to submit more documents for the INPI evaluation, other fees may be required.
The initial fee is R$ 355.00 (three hundred and fifty-five reais) for trademark registrations with an already approved specification, that is, for trademarks of products and services that are already on the INPI lists, and the final fee (when the trademark is granted) is R$ 298.00 (two hundred and ninety-eight reais) for MEI, ME and EPP and R$ 745.00 (seven hundred and forty-five reais) for companies that do not benefit from the discount granted by legislation.
However, as previously mentioned, other fees may be required by the INPI, or in the case of rejection of the trademark, where it will be possible to file an appeal (and this will generate a separate fee for its presentation).
After payment of the first fee it will be necessary to monitor the process, verifying its progress and at this stage the INPI will carry out a formal examination of the application. In the formal examination, the INPI may require new supporting documents and the deadline for submitting them is only 5 (five) days.
If everything is correct, the application is published and a period of 60 (sixty) days is opened for the submission of oppositions. Here, third parties can object to the registration of the trademark, claiming that the name is contrasting with another already registered trademark, for example. If there is an opposition, the deadline for the manifestation of this opposition is 60 (sixty) days.
After the presentation of oppositions and demonstrations, the BPTO will decide whether to grant or reject the trademark.
With the granting, it is necessary to pay the final fee already mentioned in 60 (sixty) days, and after payment the trademark will be protected for 10 (ten) years, and this time may be extended for periods of 10 (ten) successive years.
With the rejection, you can file an appeal within 60 (sixty) days, making the payment of a new fee, and at this stage you have the opportunity to demonstrate again the reasons why the trademark should and can be registered. BPTO experts will re-evaluate the application and make a final decision. From the decisions of the INPI, it is also up to the taking of judicial measures.
It is important to remember that the registration of a trademark is the only tool capable of legally protecting it from copies or unfair competition, in addition to guaranteeing its owner the exclusive right to use the trademark throughout the national territory, in addition to being able to extend this right to more 137 member countries of the Paris Union of 1883.
Therefore, in the words of Dr. Leonardo Theon de Moraes, master in Business Law and Founding Partner of the business law firm TM Associados, “the act of registering a trademark is a true investment in the company, and not an expense, because such an action will directly reflect on the future of the company itself, in marketing, in visual identity, in the security of return on investments in advertising and publicity and in the recognition of customers.”
In this way, although the trademark registration process is laborious, it is extremely important for business.
Giovanna Luz Carlos
Lawyer, graduated in law with emphasis in Civil Law from Centro Universitário Padre Anchieta – FADIPA (2019) enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP). Postgraduate in Civil Procedure at Faculdade Damásio De Jesus. Lawyer at TM Associados.
Importance of labor Compliance for companies
Business / the term compliance originates from the English verb “to comply”, which means “to obey, to be in compliance with laws, ethical standards, internal and external regulations”.
Compliance is nothing more than a code of conduct, with a public character (usually available on the website of a particular company) in which the Company defines its values, objectives, goals and standards of how to act in certain situations, before customers, suppliers and employees. It arose with the full intention of avoiding deviations in conduct, preserving the principle of good faith and legal certainty.
In addition to standardizing the conduct to be taken by the company and its employees, compliance rules aim to make companies transparent to the market and society.
Following this premise, it should be noted that labor compliance arose in order to make transparent to the market and society the attitude and treatments taken by a certain company before its employees. Said device ensures the practice of good manners by the company and its employees in maintaining compliance of its Acts/requirements with the laws relevant to labor law, reducing the risks of suffering administrative fines or other penalties. In this mainstay, it should be noted that the main objective of labor compliance is to minimize labor liabilities, that is, the rates of lawsuits.
In this mainstay, it should be noted that the main objective of labor compliance is to minimize labor liabilities, which includes creating, in a certain way, a protection to the Labor risk that the company may suffer due to the practice of illegal conducts. For this, the attitudes admitted in the organization must be adapted, from the base to the board / presidency, also instituting punishments for those who fail to comply with the provisions of the code of conduct.
In addition, for there to be an effective compliance with the rules of labor compliance, and also, in a certain way, an “inspection” of the conduct of employees/managers, it is of paramount importance, the creation of a complaint channel that, among others, must preserve anonymity and efficiency, where employees can make their complaints, complaints and situations that they understand hurt the company’s code of conduct.
In order for labor compliance to be established and harmonious, fulfilling its purpose, it is necessary to establish a multidisciplinary team, in which the human resources sector must work concomitantly with the legal, accounting, as well as with management (managers/directors, etc.) to act and detect in the Prevention of risks, in order to avoid disagreements between employees and superiors, work accidents, development of occupational diseases and other situations that may give cause to possible propositions of labor complaints.
In order for there to be effective mitigation of Labor risk, the attitudes to be taken by the company go far beyond, for example, simply providing personal protective equipment (PPE), the needs of the company and each sector must be ascertained and the premises adjusted to this.
It is possible to cite as an example a sector of a certain company that there is a demand for employees to perform overtime habitually. In this case, it should be verified what is the best strategy to solve the problem, and the solution may be the limitation of 2 extra hours per day with the institution of hour bank, or the hiring of more employees, or even the hypothesis of the promotion of one or two employees to a position of trust, which in accordance with Article 62 of the CLT, does not have control of working hours, but with the right to an increase of 40%.
Or, the Company expressly states in its code of conduct that it is intolerant of slave labor, child labor, as well as moral and sexual harassment, repudiating and creating express punishment for those who hurt such recommendations, regardless of the position that the offending individual enjoys.
In other cases, companies that have production lines can be mentioned, which, in addition to providing personal protective equipment (PPE), include in their code of conduct that there will be, periodically, the realization of studies and ergometric reports in order to verify what possible damages that a certain function brings to the worker if exercised for many hours and for a long time, and also, stating what attitudes will be taken to avoid triggering possible diseases arising from the posture in which the worker remains during labor, either by performing repetitive movement or by carrying excess weight.
Finally, it is concluded that the institution of a labor compliance will not eradicate all the risks of the company, considering that there is no organization free of economic and business risks, however, through labor compliance it is possible that such risks are mapped, controlled, calculated and even avoided, aiming at the mitigation of Labor liabilities, as well as that the company increases the level of credibility before its customers, suppliers and employees, making all individuals want to negotiate and work with that organization.
Júlia Piovesan de Souza is a lawyer, graduated in law, from the Padra Anchieta University Center (2018), enrolled in the Brazilian Bar Association, São Paulo Section (2019). Postgraduate in Business Law from Faculdade Legale, author of articles. Lawyer at TM Associados.
Arbitration in labor law-conflict resolution.
Few know, but the judiciary is not the only means of resolving a conflict between two people. In the civil sphere there is already an old acquaintance in the middle, which is arbitration. This is a form of conflict resolution that can be defined as: “conflict resolution by a trusted third party of both parties that can be used by capable persons and on available Rights”.
In the case of the Labor Court, the labor reform authorized the use of this means of conflict resolution. However, it is important to note that for the application of Arbitration in cases related to labor law:
It is necessary to examine the fulfillment of the basic requirements for the application of the technique, since:
it is only valid on individual contracts;
if it has to be agreed since the hiring or may be adhered to voluntarily in the course of the employment contract or after its termination;
whether collective bargaining may change the requirements laid down by law for the adoption of Arbitration;
if there is the application of equity in the arbitral environment;
if arbitration has a limitation in its field of discussions.
However, several of these issues for most jurists are clarified when analyzed article 507 of the CLT that provides for:
In individual employment contracts whose remuneration is more than twice the maximum limit established for the benefits of the General Social Security System, an arbitration clause may be agreed upon, provided that on the initiative of the employee or upon his express agreement, under the terms provided for In Law No. 9,307, of September 23, 1996.
The fact is that if today there is a chance to solve problems far from the crowded judiciary, this will always prove to be the best way out. Even in this sense, it is important to say that using arbitration or mediation is a way to democratize justice for the parties.
Juliana Brianezi Faria, lawyer, graduated in law from Centro Universitário Padre Anchieta, enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP). Postgraduate in civil Procedural Law from Faculdade Damásio De Jesus. Postgraduate student in labor law and process at Universidade Presbi
LGPD administrative fines begin to apply
In order to enable greater security in the processing of personal data of individuals, Law 13.709/2018, named as the General Data Protection Law and popularly known by the acronym LGPD, entered into force throughout the national territory on September 18, 2020.
Since then, it is expected that small, medium and large companies have started a task force to adapt all their sectors and means of business to the rules provided for in the LGPD.
What few know is that the law was partially in force, since only the administrative fines for non-compliance with the law, provided for in Article 52, began to take effect from this Sunday, August 01, 2021.
The period of 1 (one) year for the beginning of the application of fines for infringing companies was granted by Congress in order to provide timely information for companies, at first, to understand what operations, both internal and External, would be influenced and make the necessary adjustments.
If it is known that the simple modification in the day-to-day of some sectors of the company, it is only a starting point for the company to comply with the law, but it is not enough. Compliance with LGPD needs to be a culture within the company and the knowledge of the entire body of employees, directors, service providers and even suppliers.
Fact is that more than ever, the Brazilian entrepreneur must take seriously and do everything possible to comply with the rules imposed by the LPGD, this is because the punishments provided for are strict and, depending, may cause great financial losses for the company.
The National Data Protection Authority (ANPD) will be the main body responsible for overseeing compliance with the LGPD throughout the national territory and, therefore, this will be the entity that will apply administrative fines when any irregularity is found.
The penalties vary in: administrative, such as the application of warnings, payments of high fines calculated up to 2% (two percent) of the turnover of the infringing legal entity, limited, in total, to R$ 50,000,000.00 (fifty million reais) per infraction,the publicity of the infraction committed, a measure capable of tarnishing the company’s reputation in the market, making its growth unfeasible and even the Prohibition of using certain data, a penalty that may even make it unfeasible to continue of the company.
Little is known about how the ANPD will carry out the inspection and apply the fines, but it is expected that this will occur in phases and the infractions will be measured in degrees of severity, starting with the application of warnings, with a more educational focus, so that the company knows what, how and even when it needs to adapt its operation to comply with the law and, later, in cases where the adequacy is not regulated even after receiving the necessary warning and guidelines, the application of the fine in Pecunia.
As stated, the ANPD will be the main body responsible for overseeing compliance with the LGPD, but it will not be the only one. By publicizing the rights that the law guarantees, it is expected that the holders of personal data themselves will assist in the supervision of the holders of their data and report the abuses committed not only to the ANPD, but also to the judiciary when necessary.
Thus, it is extremely important that entrepreneurs turn their attention to the General Data Protection Law and adapt their companies, because only then will they be safe and ready for when the inspections actually begin.
Marina Sampaio Costa
Lawyer, graduated in law, from the Padra Anchieta University Center (2018), enrolled in the Brazilian Bar Association, São Paulo Section (2019). Postgraduate in Business Law from Faculdade Legale, postgraduate in corporate law and Compliance from Escola Paulista de Direito (EPD), author of articles. Lawyer and manager of the advisory area at TM Associados.omit for real
New Business Environment Law (Law 14.195 / 21)
Dear customers and friends,
The New Business Environment Law (Law 14.195 / 21) was sanctioned by the president of the Republic, and is already in force. It alters many negotiation and procedural points throughout the Brazilian territory. It is a law that came to seek to improve Brazil’s ranking in DOING BUSINESS (https://www.doingbusiness.org/en/doingbusiness), which could attract more international investment to the country.
You have a point of attention, which has urgency: the citations, which are the acts for which the defendant, the interested party, or the executed are summoned to join the action, offering defense, have become preferably Electronic (by e-mail). With this, received the citation email, the cited will have a period of 3 (three) business days to confirm receipt, if receipt is not confirmed there will be an attempt to citation by other means (bailiff, letter, among others).
For those who do not confirm receipt and are cited by other means, at the first opportunity to express themselves in the process must justify why the citation received is not confirmed by e-mail, and if there is no just cause for the lack of confirmation, the act may be considered as an attack on the dignity of justice and result in a fine of up to 5% of the value of the cause.
The law establishes that, for citation purposes, the Regional Council of Justice will draft a resolution to define how the registration and updating of the database will take place, which has become mandatory: all of us will have to register e-mail for citation receipt purposes.
The problem is that, until the regulation of the CNJ takes place, the emails provided to the Tax Administration (Federal Revenue and state revenue), may be used for this purpose, that is, those emails provided when opening companies, or when submitting the annual income tax adjustment Declaration of individuals and legal entities, may be the email used to send a quote.
Many accountants report their own emails to Receitas Federal, Secretaria da Fazenda do Estado, among other public agencies, so we recommend that each of you check with your accountants about what will be the email informed in the Tax Administration records, and what will be the procedure for you to receive the electronic citations in time to present defense in any legal process.
Written by: Maura Varella, executive partner.
Lawyer, graduated in law, with emphasis in civil and civil procedural law, from the Faculty of Law of the University of Vale do Paraíba (1995), enrolled in the Brazilian Bar Association, São Paulo Section (1996), specialist in civil and family law from the Faculty of Law of the University of São Paulo (1998), postgraduate in business law from the Brazilian School of law / OAB, member of the Business Law Commission of the 33rd subsection of the OAB/SP, Deputy Head of ceremonial and protocol of the 33rd subsection of the OAB/SP, author of articles. Partner responsible for the litigation area of TM Associados.
Black Friday and the right to regret
There are some commemorative dates that have been created in order to stimulate commerce, among them Black Friday, known for offering a variety of promotions, especially in the area of electronics. In that year 2021, it is expected to set a record for online sales on that date.
The pandemic played a definitive role in increasing sales through the internet, called e-commerce, since many people stopped circulating through shopping malls and shopping centers to avoid crowds.
It has become routine to make purchases through websites and applications, both clothing, electronics, appliances and even food, often for a more advantageous price than in physical stores. However, there are some points that deserve attention.
Purchases made online guarantee the right to regret, which is nothing more than the possibility of the consumer, in a very simple and fast way, to give up the purchase made through the internet, without having to justify themselves.
The Consumer Protection Code, in its article 49º, establishes that the consumer can withdraw from the purchase whenever it is carried out outside the commercial establishment, within 7 (seven) days, since in this case there is no direct contact with the product.
This right does not cover purchases made in the store, since on this occasion the consumer has the opportunity to see and try the product before making his purchase decision. In this case, the merchant only has the obligation to make the exchange or refund the amount paid if there is a defect in the product capable of making it unfit for consumption or that devalues the good. Exchange in other cases is mere freedom of the shopkeeper. For this reason it is the obligation of the merchant to provide the relevant information of the merchandise to avoid any type of problem.
As much as there is a right to regret online purchases, making the exchange or return can cause certain wear and tear to the consumer. Therefore, the recommendation is that he carry out a conscious and planned consumption, respecting his financial organization to avoid impulsive purchases.
A precious tip for Black Friday is to carry out a good price research of the desired product a few weeks before to check if the promotional value is really advantageous, since it is a common market practice to leverage prices in the period leading up to the date. In 2020, the products were up to 70 % more expensive, according to the Brazilian Institute of retail executives and market research.
Consumption (IBEVAR). This practice, popularly known as” Black fraud”, must be reported to consumer protection agencies such as PROCON (Consumer Protection and Defense Program).
Other illegal practices, such as the dissemination of misleading advertising (that which brings false information, seeking to mislead the consumer), must also be reported to PROCON, and, depending on the severity of the case, prosecuted. In the latter case, it is recommended to look for a lawyer specializing in the rights of
Consumer so that he can guide the case with greater propriety.
Ana Carolina Gracio de Oliveira. Graduated in law from Júlio de Mesquita Filho State University (2020). Postgraduate in Civil and Business Law from Faculdade Damásio De Jesus. Lawyer at TM Associados./