TRADEMARK VS SEARCH ENGINES IN BRAZIL

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The use of competitor’s trademarks aiming to enhance results in search engines and sponsored advertisements has sparked controversy in several jurisdictions around the world. In Brazil, it has been witnessed an increase of cases involving enquires, extrajudicial notifications and court disputes.

Search engines as Google Ads sort the search results to prioritize a paying advertiser’s website over other possible results. An advertiser purchases the keywords with which it wants its website to be associated with and is also able to block others, among other possibilities.

The controversy involving search engines emerge from the practice of allowing an account holder to include a registered trademark keyword even if the account holder does not own the rights to that trademark.  Search engines usually (e.g., the use policies of Google Ads) do not check the trademark status of a keyword at the time of selection, but instead investigate claims of infringement only after receiving a complaint. Moreover, search engines may apply different policies to the selection of a trademark as a keyword depending on the region/country in which the trademark is registered.

In short, search engines may allow advertisers to promote and direct consumers to determined website via using keywords containing trademarks or trade names of third parties (including of competitors). The results usually appear at the top of a search page on the search engine because they have been sponsored or paid.

In Brazil, despite the still scarce number of rulings and absence of decisions from the courts of appeals and superior courts on the merits, in addition to the subjectivity in analyzing the matter, the courts position has been shifting (mainly in decisions vis-à-vis injunction orders) towards the understanding that the use of a registered trademark from a third party as keyword in search engines may, depending on the circumstances, be construed as a trademark infringement, and, ultimately, unfair competition.

Another common scenario which entails higher risks of a trademark infringement being characterized (based on the circumstance of misleading of consumers) occurs when, for example, Company XXX would hire a sponsored link for the expression YYY, which is already a registered trademark of the competitor. In this case, every time a consumer searches for the expression YYY it would be shown company XXX’s website first, many times accompanied by the expression ‘’buy here’’.

Within this context, and, mainly, while there is not a clearer outlining (via passing of legislation or maturing of the jurisprudence) of the requisites and parameters vis-à-vis such market practices, entrepreneurs shall keep special attention to the protection of its intellectual property rights against, depending on the circumstances, unlawful/abusive purchasing of sponsored links and/or keywords in search engines.

Even sales agents and/or authorized resellers, except when holding the express authorization for the use of third-party trademarks, may incur in infringement of intellectual property rights.

It is undoubtful that the use of search engines is essential in the development of a strong marketing strategy, however being required special attention to the scope of application of the protection granted by the trademarks law (Law 9,279/1996) and other applicable regulations.

NEW RULES FOR SOFTWARE AS A MEDICAL DEVICE APPROVED BY ANVISA

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The Brazilian Health Regulatory Agency (ANVISA) agency with a mandate to promote the protection of the population’s health by executing sanitary control of the production (including facilities, processes and raw materials), marketing and use of products and services subject to health regulation, published on the Union’s Official Gazette, of March 24th, 2022, RDC 657/2022 approved by its Collegiate Board which addresses the regularization of software as medical devices (the so called “SaMD”).

This new regulatory framework enters into effect on July 1st, 2022 and is the result of the Public Consultation 1.035/2021, ended in June 2021, which received more than 400 contributions.

Before the new regulatory framework, ANVISA applied to this matter RDC 185/2001, which governed medical devices in general. The text of the former Resolution had a content primarily focusses on physical products (tangibles), not digital ones (intangibles), thus, under a paradigm different from the deep ongoing digitization process in health, far from current standards.

In order to create a favorable background for the creation of the new rules, ANVISA prepared a   Regulatory Impact Analysis Report comprising the specificities of software as a medical device, emphasizing the increasing growth in the use of technology in the healthcare sector and also the growth and constant advances in this area.

The new RDC 657/2022 is consistent with practices from other international health authorities, such as in the European Union and United States, placing Brazil in a position to achieve stronger cooperation agreements with such health authorities.

The first section of the new regulation clarifies which types of software the rule does not apply to, inter alia:

– software used for well-being: those projected to encourage and maintain the well-being including healthy activities as physical exercises, health control and monitoring and a healthy lifestyle that are not intended for diagnosis, treatment, or rehabilitation;

– listed in a list of non-regulated products, as published by ANVISA;

–  used exclusively for administrative and financial management in health services;

– that processes demographic and epidemiological medical data, without any clinical diagnostic or therapeutic purposes;

– embarked in a medical device already regulated by ANVISA.

The second section is dedicated to important definitions of terms associated to SaMD.

The requisites on use and labeling comprised by RDC 185/2001 and RDC 431/2020 remain in force, with the new norm encompassing a Chapter with the inclusion of several relevant information as i)  alerts and warnings; ii)  minimum hardware and software requirements; and iii) cybersecurity information.

The expected outcome is that the new regulatory framework will help to simplify classification and registration of those types of medical devices, offering greater legal stability, strengthening the use of such mechanisms and fostering innovation by software developers.