Estratégias jurídicas para possíveis conflitos entre indicações geográficas e marcas

Abstract

The phenomenon of coexistence in the market between Geographical Indication and brand is a challenge for the Brazilian legal system, since the legislation is not able to regulate all possible cases of conflict involving both institutes, which creates legal insecurity and enables conflict of rights. In this work, possible legal strategies to overcome this legislative gap are investigated. Therefore, the objective of the research is to propose a doctrinal contribution that can act in a preventive way, helping the law enforcer in the interpretation of the legislation that involves the theme, anticipating forms of conflicts and solutions, thus reducing the existing degree of insecurity and avoiding conflicts of law. For the construction of legal strategies for possible conflicts involving Geographical Indication and Brand, an exploratory research was carried out, using the bibliographic and documentary method. The results showed that although there is no express normative prediction for each situation that may exist related to the conflict of the analyzed institutions, the theoretical framework that involves them is sufficient to identify ways of solving the problem. Both the principles related to the distinctive signs and the theories based on semiotics - although they are not enough to solve the problem, because the geographical mark and indication have a different legal nature - can be part of the strategy to resolve the conflict. It was also found that the IG has a superiority in relation to the brand, and that its legal protection, aims, among other reasons, to avoid its generalization in the face of the existence of a brand that is similar to it. The considerations suggest as a general legal strategy the following: it must be verified whether the brand that reproduces, imitates, evokes or associates with IG, can lead the consumer to error; it must be verified whether the use of the brand in conflict with the IG is configured as an unfair competition practice; and, you should check if the brand contributes to the generalization of the IG