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Among the relevant points of intellectual property is its relationship with antitrust law. Not long ago, this topic was the subject of an explanation in the Specialization Course at the Center for Economic and Social Law Studies (CEDES), by doctors Samantha Bancroft Vianna Braga and Daniel Douek, whose reports ranged from generalities to the points of contact between the two. Below is a summary of what was presented.
For a certain time, it was believed that there was a conflict between intellectual property rights, including trademarks, and competition. However, currently, the trend indicates complementarity between the two, due B2B Lead to the aim of generating economic efficiency and incentives for innovation, in relation to products and services; giving consumers greater security in their choice. Within the scope of intellectual property law, brands have their own logic. It allows consumers to understand the difference, whether between goods or services, with less confusion and costs in terms of identification; as well as protecting investments made and encouraging brand owners to build their respective reputations. It is recognized that intellectual property and competition, although they present inherent tensions, have common objectives of encouraging consumer well-being and promoting innovation. This is what both North American authorities ( Antitrust Enforcement and Intellectual Property Promoting Innovation and Competition (2007)) and Brazilian authorities (Cade) think.
It is important to distinguish imitation competition from outperforming competition. Intellectual property prevents the unauthorized use of the fruit of the trademark holder's creative activity, relating to a product or service. But it allows development that leads to a similar product or service, capable of making the two holders compete in the relevant market.
Competition law, whose purpose is to ensure the correct functioning of markets, exercises this role preventively, by controlling concentrations; and repressively, punishing conduct that reveals the illegal exercise of economic power. “The purpose of these standards is to protect the proper functioning of markets by controlling the actions of companies that hold economic power, which can be understood as the ability to change market functioning factors (such as price, quantity, quality) independently , given the insufficiency of reactions from competitors or consumers and clients to counter it”[ 1 ].
In the current Brazilian law on competition — Law 12,529/2011 — there are provisions relating to brands:
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Art. 38. Without prejudice to the penalties prescribed in art. 37 of this Law, when the gravity of the facts or the general public interest so requires, the following penalties may be imposed, individually or cumulatively:
IV – the recommendation to the competent public bodies that:
a) a compulsory license for intellectual property rights be granted owned by the offender, when the infringement is related to the use of this right;”
Art. 61. “In judging the request for approval of the economic concentration act, the Court may approve it in full, reject it or approve it partially, in which case it will determine the restrictions that must be observed as a condition for validity and effectiveness of the act.
§ 1st Court will determine the applicable restrictions in order to mitigate the possible harmful effects of the concentration act on the relevant affected markets.
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