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.
We briefly point out about the moratorium Penal clause
According to the Chicago School of law and economics, individuals react to negative and positive economic stimuli, causing the law to directly influence the economy and the economy directly the law.
In this line of reasoning the study of penal clauses in contracts is inseparable from its reason for creation, based among others on the concept of economic law.
Through penal clauses, economic consequences are established for a party that fails to comply with its obligations. More than that, the penal clause aims to force the contractual performance so that the performance must be more economically advantageous than the default.
To illustrate your application imagine the following case:
In a purchase and sale agreement it is stipulated that payment is made within 30 days, but the contract does not define a fine, interest, or any other penalty for late payment. In this example we have that economically it is more viable to wait for an eventual execution of the outstanding amount than to make the payment on the due date.
Now imagine that in this same contract a penalty of 2% was stipulated for default and interest of 1% per month from the date of default until its effective payment. In this example, respecting the specifics of each case, the stipulation of these penalties makes the payment on the stipulated date more economically and legally advantageous than its default, which encourages the agent to comply with the contractual obligation.
Now that we have gone through the rational that sustains the stipulation of penal clauses, in the civil code, more specifically in Article 409[1], we have the general concept of Penal clause, as well as the creation of 2 (two) species of penal clauses, being the compensatory or indemnifying, and the moratorium clause, of which we will address in this article only the second.
The Penal moratorium clauses are those that provide for a pecuniary value as a penalty for default, but that do not include in their eventual value compensation for losses and damages, which, in practice, will entail to the defaulting party not only the payment of the fine, but also of the losses and damages, if any.
In both types of penal clauses, these cannot have their value fixed at random. On the contrary, the values of the penalties must, among others, observe the limit of the value of the contract, as we can observe the provisions of articles 410, 411 and 412[2], all of the Civil Code.
Exception made to this limitation is for the cases of the application of the efficient default theory, which argues that, in some cases, the default presents a better economic result than the default, and, in these cases, the default is motivated by the legal system (this theory is used, for example, in contracts involving professional athletes, in which the value of the penalty for early termination is much higher than the value of the contract itself).
We also emphasize that the double incidence of penal clauses is prohibited, that is, 2 penalties for 1 single obligation.
Finally, although penal clauses make it more economically and legally advantageous to comply with an obligation, their provision does not guarantee compliance, which must be sought through contractual guarantees, such as: guarantee, bail, surety; real guarantees; among others.
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.
Pedro Anselmo Boaventura-graduated in law, from Centro Universitário Padre Anchieta (2021). Postgraduate in Civil and Business Law from Faculdade Damásio De Jesus. Paralegal of the advisory Department of TM Associados.
[1] Art. 409 the penal clause stipulated jointly with the obligation, or in a subsequent Act, may refer to the complete non-performance of the obligation, to that of some special clause or simply to the late payment.
[2] Art. 410. When the penal clause is stipulated for the case of total default of the obligation, it will become an alternative for the benefit of the creditor.
Art. 411. When the penal clause is stipulated for the case of late payment, or in special security of another determined clause, the creditor will have the discretion to demand the satisfaction of the penalty commended, together with the performance of the main obligation.
Art. 412. The amount of commination imposed in the criminal clause may not exceed that of the main obligation.
The monetary correction in labor justice
In recent years, the Labor Court has issued conflicting understandings about the monetary correction of Labor debts. This is because, in the past, the monetary correction and the application of interest on debts were regulated by Article 39 Of Law No. 8,177/1991, which provided for late payment interest at the daily reference rate (“TRD”) between the maturity date of the obligation and payment.
However, paragraph 1 of that article also provided for the application of interest of 1% per month to overdue labor debts, counted from the filing of the complaint. In this mainstay, the courts adopted the understanding that the caput referred, in fact, to monetary correction, since the TRD is entitled to the updating of the national currency, and that paragraph 1 referred to the remuneration of money in time, through the incidence of interest of 1% per month.
Subsequently, Law No. 8,660 / 1993 replaced the TRD with the Reference Rate (“TR”). However, initially, outside the labor sphere, in the Supreme Court (“STF”), through direct actions of unconstitutionality 4.357, 4.372, 4.400 and 4.425, debates arose about the ability of the TR to be used as a monetary correction index, which is why the application of the IPCA-E (national index of consumer prices Special Broad) was brought only for the debts of the public treasury, until the legislative power defined another index.
In this sense, under the terms of the STF decision, the Superior Labor Court (“TST”) also adopted the application of IPCA-E as a monetary correction index for Labor debts.
However, with the labor reform in 2017, paragraph 7 of Article 879 of the CLT explicitly brought the determination of the use of the TR in the correction of debts, but the Labor Court maintained the understanding of unconstitutionality of the TR as such index, as well as of the aforementioned device.
Thus, in the face of such contradiction and legal uncertainty, the Supreme Court determined the suspension of Labor trials of ongoing processes that involved the application of Article 879, paragraph 7, of the CLT, until they decided on the issue involving the theme of interest and monetary correction.
Finally, the current jurisprudential and, today, binding understanding was established, which is the incidence of IPCA-E in the pre-judicial phase and, from the filing of the lawsuit, the SELIC rate, prohibited the cumulation of this with other indices and as occurs in the civil sphere.
It is important to note that it was determined that the parameters set were also applied to the cases that were adjudicated, provided that the judgment did not expressly define the monetary correction and interest and that the debts had not yet been paid.
Despite the binding effect of the decision, there are still disagreements in the courts regarding the incidence of late payment interest, which is why some judges have applied interest of 1% per month in the pre-judicial phase in addition to the correction index of the IPCA-E, since it is understood, by the content of the STF decision, that the Selic rate cumulated with said interest may characterize double conviction (“bis in idem”).
Therefore, it can be concluded that the thesis signed by the SFT, which excluded the interest of 1% per month from the filing of the lawsuit and determined the incidence of the IPCA-E in the pre-judicial phase and the SELIC rate from the citation, guarantees the non-excessive and abusive increase in time of the labor debts sued by the employee against the employer and eventually granted by the court.
Victory Ships Caltran. Lawyer, graduated in law, with emphasis in private law, from Pontifícia Universidade Católica de Campinas (2020), enrolled in the Brazilian Bar Association, São Paulo Section (2021). Lawyer at TM Associados.
Public Domain
If you are an attentive reader and follow the latest trends in the publishing market, you probably noticed the great movement of publishers to publish their own version of George Orwell’s “1984” in 2021. The same movement happened in 2015 with the book “The Little Prince” by Antoine de Saint-Exupéry.
These works have already completed good years of age, having been published, respectively, in 1949 and 1943, and already have the ranks of classics of world literature. So why have so many different publishers bothered to make their own versions available so recently?
Well, the answer is simple: novels fell into the public domain in those years. Knowing this, new questions arise: What does the expression “fall into the public domain” mean and when exactly does this happen?
To understand the public domain, you need to understand what copyright is, we explain:
The authors of literary, artistic and scientific works have a number of rights to their objects of creation. These rights are divided between moral and patrimonial rights, which complement each other but are not confused.
Moral rights are inseparable from the person of the creator, that is, he cannot commercialize and transfer these rights by any instrument. A classic example of a moral right is the right to have your authorship recognized, so as to have your name linked to the work for all eternity.
On the other hand, the patrimonial rights of the author are those that can be taken advantage of financially. These, unlike moral ones, have a validity period and can be transferred to third parties, such as the right to reproduce the work, which is what happens when a musician allows his music to play in a movie, for example.
As a rule, authors enjoy these property rights while they are still alive. When they die, the heirs, if any, enjoy these rights for a period of 70 (seventy) years counted from January 1 of the year following the author’s death.
It is only after this period that the work falls into the public domain, when society begins to take advantage of the work free of patrimonial rights, without the need, therefore, for authorization or payment of any license amount, in order to break with the monopoly that was previously the author’s. This is what our Copyright Law provides (law nº 9.610, of 1998).
Soon, as George Orwell died in 1950, all his works fell into the public domain in the year 2021, which allowed the patrimonial rights, in particular the right to reproduce his books, to no longer belong to a single publisher (Companhia das Letras), but to all interested parties. That is why today it is possible to find a multitude of editions of his works, of all sizes, tastes and prices in bookstores, and, because of the immortality of moral rights, The Binding of the work to the author will remain even if it has “fallen into the public domain”.
Ana Carolina Gracio de Oliveira. Lawyer, graduated in law, from Universidade Estadual Paulista “Júlio de Mesquita Filho” (2020), enrolled in the Brazilian Bar Association, São Paulo Section (2021). Postgraduate in Civil and Business Law from Faculdade Damásio De Jesus. Author of articles. Head of the litigation department of TM Associados.
(Im)possibility of disproportionate distribution of profits in Joint-Stock Companies
Until recently it was peaceful that there could be no disproportionate distribution of profits in Joint-Stock Company. However, with the enactment of the legal framework of Startups (LC nº 182/2021), which amended the law of S/A’s (law nº 6.404/1976), the discussions were revived.
Unlike limited companies, governed by the Civil Code, which provides for the possibility of disproportionate distribution, by provision in the social contract, the law of S/A’s did not mention anything. The understanding about the impossibility, in the cases of S/A’s, was built jurisprudentially and doctrinally, since there was no authorization or legal prohibition.
Thus, the legal framework for Startups provided that small companies, in cases of omission of the bylaws, could decide, at a general meeting, about the distribution of their profits, provided that the right of preferred shareholders to receive the fixed or minimum dividends to which they have priority is respected. In these cases, the mandatory distribution of mandatory dividends would even be removed.
However, the lack of clarity of Article 294 and the few months of validity of the amendments made to the S/A’s law brought uncertainty to the disproportionate distribution of profits in the S/A’s.
Therefore, without a position of the judiciary, jurists who understand the possibility of disproportionate distribution, made a more comprehensive interpretation of Article 294 considering the entire context of its Amendment and other provisions of the legal framework of Startups. Especially since the legal framework for Startups has provided for more liberal and de-bureaucratized guidelines, allowing societies to be more competitive.
For these jurists, these principles were not foreseen for nothing, since they are precisely based on the flexibility and dynamism that startups have brought to the market. In this context, the possibility of disproportionate distribution of profits in S/A’s would be compatible with the liberal and de-bureaucratized guidelines provided for.
In addition, the disproportionate distribution of profits makes it possible for the right to realize them to be linked to the shareholder, making it possible for each shareholder to be distributed percentages according to their participation in the activity and not only in the share capital. The very personal nature of the disproportionate distribution would be compatible with the scenario brought by startups, in which some enter society only as investors and others by the ability to undertake and/or by possessing the necessary know-how.
More conservative jurists understand that, since the amendment to Article 294 was made in isolation, that is, without other articles being amended together, especially Article 109 of the S/A’s law, which lists the rights of shareholders, the understanding until then consolidated remains unchanged. This is because by Article 109 of the law of S/A’s the bylaws or the general meeting cannot withdraw some rights of shareholders, among which we highlight the right to participate in profits.
Given the short duration of the amendment of Article 294 of the S/A’s Law, uncertainty will undoubtedly be present in the disproportionate distribution of profits in S/A’s.
In this scenario, even though minority shareholders do not have decision-making power at General Meetings, it is extremely important that their right to receive profits is not impaired if proportional distribution is adopted. In such a way that the disproportionate distribution must obey objective and fair parameters, which cannot mean the receipt by some and the non-receipt by others, that is, even if disproportionately, the company’s profits must be distributed to all shareholders, observing objective and rational parameters for both.
Thus, the criteria that led to the disproportionate distribution of profits, which, even if it does not observe the rule of mandatory dividends, must respect the minimum pre-fixed to preferred shares, so that the General Meeting will not be able to set a lower percentage or, then, not prioritize its payment.
Even if all precautions are taken, it is not possible to affirm that the disproportionate distribution of profits will be understood as valid by the judiciary, which is why the risks of this practice must be weighed when using the Institute.
Anna Paula Piovesan Pinheiro
Lawyer, graduated in law, with emphasis in Civil Law, from Universidade Presbiteriana Mackenzie, postgraduate in Business Law from Pontifícia Universidade Católica do Rio Grande do Sul-PUC – RS, enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2021). Author of articles. Lawyer at TM Associados.
Leonardo Da Vinci
Lawyer, graduated in law, with emphasis on 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, University professor, member of the São Paulo Lawyers Association (AASP), member of the corporate law and mergers and Acquisitions Committee of the International Bar Association. Founding partner of TM Associados.
Property Regime and estate planning
The choice of property regime, whether through marriage or stable union, is one of the most important moments in the life of a couple, however, it is necessary to pay attention to the conscious choice of property regime.
Although this is still a difficult subject for those who are starting life as a couple, it is extremely important that the parties understand the types of property regime and how such a choice impacts on the patrimonial and financial life of the couple.
The property Regime is basically a defined agreement between the spouses regarding what happens and what will happen to each other’s property as a result of the union or marriage. Thus, the choice of property regime consists of the most important strategy of estate planning and succession, and, through it, conferred legal certainty to the rules of administration and exercise of the property rights of the couple.
The Brazilian law provides for the existence of five main property regimes, which are: partial communion Regime, universal communion Regime, final participation Regime in these, total separation of assets Regime and mandatory separation of assets Regime, in addition to the possibility for spouses or partners to stipulate a regime other than those provided by law. It is illustrated with the table of CNB / SP (Colégio Notarial do Brasil)[1]:
The partial communion of property Regime is the most common in Brazil, because the Civil Code provides that, if there is no express choice of the nuptials, such a regime must be in force. In this sense, only the assets acquired in an onerous way in the constancy of the marriage/union will be communicated. In addition, in the event of the death of one of the spouses, there is meação (a term that designates the ideal half of the couple’s common patrimony) of the assets acquired onerously during the Union, in addition to the surviving spouse inheriting the private assets in competition with the descendants.
On the other hand, in the regime of universal communion, all property, whether previous, present or future to the celebration of the marriage, will belong to both spouses, with the exception of property received as a gift and provided that these are recorded with the incommunicability clause. In addition, debts are also communicated, however, in general, debts prior to marriage are excluded from Communion, unless there is proof that such debts have been reversed for the benefit of the couple.
On the other hand, if the couple chooses the total separation regime, no individual assets will communicate with that of the other, so each of the parties manages their own assets and in case of dissolution of the union there will be no common assets to be shared. Furthermore, regardless of the judicial authorization and / or consent of their spouse, both spouses may alienate or encumber the real estate, claim about these assets or rights and provide bail or guarantee. In addition, it is important to mention that in the event of the death of one of the spouses there is no measure, however the surviving spouse will inherit the private assets in competition with the descendants.
The final participation Regime in the aquests is little used, since it is difficult to understand. In this regime, the rules are the same as those of partial communion of property, however, during the constancy of the Union, the spouses may freely dispose of their assets, and only in the event of its dissolution, either by divorce or by the death of one of the parties, each of the spouses will be entitled to half of the assets acquired onerously in the constancy of marriage, in addition to the surviving spouse inheriting the private assets in competition with the descendants, as in the regime of partial communion of property.
The regime of mandatory separation of property is necessary in three cases: when one of the nuptials is over seventy years old, when people marry without observing the suspensive causes and for those who depend, to marry, on judicial supply. In addition, in the event of the death of one of the spouses, there is a measure of the assets acquired onerously during the constancy of the marriage, however, in the event of death, the surviving spouse will not inherit the private assets of the spouse.
In addition, there is the possibility for the parties to create a property regime in any way they see fit. Thus, the couple can mix the already existing regimes or create a new type of regime, and such freedom goes as far as the law does not prohibit.
Finally, it is important to point out that it is possible to change the chosen property regime. In this logic, it is necessary that the request for change occurs judicially, so such a request must be motivated. Therefore, by way of example, it is necessary to present a hypothesis that can justify the change in the property regime:
This is the exercise of entrepreneurial activity of one of the spouses married under the regime of partial communion of property. In this sense, considering that the assets of both spouses can be affected by the property obligations of the company, it is not reasonable for such obligations to affect the assets of the non-entrepreneur spouse. Thus, it is possible to apply for switching to the regime of full separation of property, if there is no enforcement proceedings in progress.
Therefore, it is necessary to exercise caution in the choice of property regime, in order to avoid “surprises” arising from the chosen option, given its patrimonial and succession impacts.
Marina Arista Silva. Lawyer, graduated in law, from Pontifícia Universidade Católica de Campinas (2020), enrolled in the Brazilian Bar Association, São Paulo Section (2022). Postgraduate in civil Procedural Law from Faculdade Damásio De Jesus.
[1] https://cnbsp.org.br/?fbclid=IwAR1oMf5UlXPc3YwxcM-HGAlyzzWHTYiobzW9vJfH0Uq2zudHJFO7k5kPx2s
Care when buying real estate
Legal transactions involving the transfer of real estate property should be done with caution, because, strictly speaking, their effectiveness depends on the seller having financial suitability, so that the absence of caution on the part of the buyer may result in the loss of the property and the amounts invested in its acquisition.
This risk arises from the fact that the presumption of ownership in our legal system is relative. In other words, the acquisition of real estate, even if the legal requirements for its acquisition are observed, such as notarized public deed, registration in matriculation, payment of Property Transfer Tax and rights – ITBI, may have its validity challenged, in such a way that there will never be, in fact, certainty in its acquisition.
There are numerous causes that can invalidate the purchase and sale of real estate: false power of attorney; if the transferor practices the sale as a fraudulent act that results or may result in damage to creditors (fraud against creditors); if the seller practices the sale in order to prejudice the judicial process of execution (execution fraud); absence of legal requirement, such as lack of full capacity, among others.
In this way, the acquisition of a property should be analyzed beforehand with caution, to avoid that the investment is made in vain. Before closing the deal, you should check:
(i) if the property has the documents in order;
(ii) if the seller is, in fact, the owner, or has the power to do so;
(iii) whether the owner is financially and morally fit;
The work of verifying such factors that bring greater security to the legal business is called “due diligence” and consists of a legal audit carried out through the analysis of documents and certificates, both from the seller and from the property itself.
In a “due dilligence” should be checked at a minimum:
the marital status of the seller;
the existence of any real rights to the property, such as mortgage, Promise, pledge, usufruct, lease guarantee;
if the good is engraved with inalienability (clause of impossibility of sale);
the origin of the property, because if it was acquired from family members, it must have had the consent of the others;
if the seller is incapable or minor;
if there is construction endorsement;
if there are municipal debts of the property;
if there are condominium, water or electricity debts;
if it is emphyteutic property, that is, property owned by the Union, and its useful domain can be transmitted, which falls specific taxes, they are usually real estate in beaches;
if there are debts and judicial executions of debts of the seller, they can somehow reach the property even after the sale.
Another item to pay attention to is if the seller is a partner in a legal entity. In this case, it will be necessary to obtain procedural Distribution certificates from the courts, as well as a protest certificate from the protest registry office of the place where the company is headquartered.
Obtaining such certificates is tied to the possibility of possible disregard for the legal personality of the company, so the responsibility for some obligations may fall on the person of its partners. In this case, if there is legal action in progress, the sale may be considered as execution fraud and be annulled.
Here is the main risk of buying and selling property: the cancellation of the sale due to a past legal fact the purchase. The cancellation of the sale generates the return of the property to the third party to be benefited from it, without any immediate compensation to the buyer in good faith-it is the so – called eviction. The bona fide buyer shall have the right to claim compensation from those who sold the property, including the value of the property and compensation for losses and damages arising from the cancellation of the legal business of purchase and sale.
However, as is known, justice is lengthy and obtaining such compensation does not operate immediately, I depend on my own judicial process for this. In order to avoid such risks, the so-called “due diligence” is carried out, to keep the business as safe as possible or even to take calculated risks.
Cindy Massesine Pimentel, lawyer, graduated in law, with emphasis on public law, from the Pontifical Catholic University of Campinas (PUCCAMP -2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2019). Postgraduate in Notarial and registry law by the Renato Sara Teaching Complex
The Rights Violated By “Fake”Profiles
It is a fact that we live in the digital age, where much of our daily lives are hosted online, from our bank accounts to social networks where we keep in constant contact with friends, family and strangers.
Like everything in the world, this reality has two sides: on the one hand, we find agility, communicating with people on the other side of the world in seconds. On the other, we have our image exposed in a vulnerable way, making it easier for our data to be used by third parties. As an example of this we have the creations of false profiles, also known as”fakes”.
Years ago, in order for a person to assume the identity of another, it was necessary for them to forge identification documents and disguise themselves completely. Today, the person’s photo and name are enough, that they will have their digital identity usurped, in a much simpler way and often causing much more extensive damage than in the past.
A clear example of how these identity usurpations are close to our daily lives, is the “WhatsApp scam”, unfortunately quite common, when a person, using the photo and name of another, presents himself to the acquaintances of this informing the number Exchange and requesting money, using excuses to justify the need for immediate transfer. Before applying the scam, agents conduct a survey of people’s social networks and find out who are the closest people to the victim, which makes it easier to receive the amount.
That such conduct is immoral is beyond doubt. But in addition to property, what other rights are violated in these situations?
Our Federal Constitution guaranteed the protection of people’s honor and image. Honor, considered social reputation, and image, both in their literal sense of reflection, as being the externalization of personality, are considered personality rights, since we cannot separate them from the individual because they are inherent to him. For this reason, they are considered inviolable rights and subject to compensation for moral and material damage arising from their violation.
This reading has also been reinforced by the Civil Code of 2002, in a chapter dedicated especially to the rights of personality, more specifically in Article 12, caput: “one may demand that the threat cease, or the injury, to the right of personality, and claim losses and damages, without prejudice to other sanctions provided for by law.”
The concern to protect these rights was not only the responsibility of civil law, but also of criminal law. In Article 307, of the Penal Code, we have instituted the crime of false identity, which is when someone attributes or assigns to another person a false identity to obtain some kind of advantage or to cause harm. This crime can keep the person detained from three months to a year, or, depending on the situation, the officer will have to pay a fine. These are the appropriate penalties as long as the agent has not used the false identity to commit a more serious crime, such as embezzlement.
Considering the immensity of the digital space, the unauthorized use of images can cause a very powerful damage to the image of the person, even irreversible, not only by the applicability of financial scams, but also by the expression of controversial opinions and the practice of acts that are not consistent with the personality of the victim. That is why we must remain vigilant with our social networks and with our personal data, being careful with the websites we visit, with the personal information we share on the internet, carefully reading the terms of use of the websites and seeking the help of a professional in the field of law whenever we feel that our personality has been violated, who can make a more thorough analysis of the recommended tool to stop the damage and repair them.
Ana Carolina Gracio De Olievira, lawyer, graduated in law, from Universidade Estadual Paulista “Júlio de Mesquita Filho” (2020), registered in the Brazilian Bar Association, São Paulo Section (2021). Postgraduate in Civil and Business Law from Faculdade Damásio De Jesus. Author of articles. Head of the Litigation Department of TM Associados.
Presumed damage: when there is no need to prove the damage
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.
Application of the LGPD for companies
In August 2022, the General Data Protection Law (LGPD) completed 1 year of full force throughout the national territory, then also taking effect the provisions that provided for penalties for processing agents who fail to comply with the law. However, there are still entrepreneurs, owners of small and medium-sized businesses, who believe that law enforcement is only for large companies.
The fact is that this certainty is one of the biggest myths when we talk about LGPD, since the law applies to every natural or legal person of public or private law, who carries out personal data processing operations within the national territory, as provided in Article 3º[1] of the law.
For further clarification, it is important to keep in mind the definitions of two key terms: personal data and processing. According to Article 5 of the law, personal data are defined as any information capable of identifying or making identifiable a natural person, so they concern only natural persons. The treatment is understood as any action carried out with the data collected, such as, for example, storage, sharing, among others.
Maintaining the thought that the law does not apply to small and medium-sized companies and not making the necessary adjustments, can lead to major financial problems, taking into account that the pecuniary penalties that can be applied by the National Data Protection Authority (ANPD), when an infraction is verified can reach up to 2% of the company’s or group’s turnover, from the last financial year, limited to R$ 50,000,000.00 (fifty million reais) per infraction.
To further aggravate the situation, in addition to great financial losses, the lack of implementation of rules and routines for compliance with the law generates negative impacts on all business procedures, such as, for example, in the relationship with customers, suppliers and employees, and may even be the subject of lawsuits, in the labor and civil spheres.
The best way to prevent this from happening is to adapt all the company’s procedures that use personal data in its operation, and the following actions can be pointed out as crucial elements for a well-structured and complete lgpd compliance process:
(I) appointment of a DPO (in charge);
(ii) risk analysis of transactions involving personal data;
(iii) mapping of the data collected and used by the company;
(iv) attributions of legal bases to the data used;
(v) adequacy of draft contracts;
(vi) policy development; and
(vii) training of the entire team.
The order and form in which these implementations will be carried out should be studied by specific people inside and outside the company, and in each case more emphasis may be placed on a specific action, all depending on the level of adequacy in which the company is.
Once these punctual actions have been completed, it is extremely important that constant monitoring of the implementation of the actions carried out is carried out, this is because compliance with the General Data Protection Law must be part of the company’s organizational culture, and therefore a punctual adaptation is not enough.
Marina Sampaio Costa
Lawyer, graduated in law, from Centro Universitário Padre Anchieta (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 Operations Coordinator at TM Associados.
[1] Art. 3º this law applies to any processing operation carried out by a natural person or by a legal person governed by public or private law, regardless of the medium, the country of its headquarters or the country where the data is located, provided that:
I-the treatment operation is carried out in the national territory;
Fashion Law: the application of law in the fashion industry
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.