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UNFAIR COMPETITION IN INTERNET SALES IN BRAZIL

UNFAIR COMPETITION IN INTERNET SALES IN BRAZIL. By Walter Douglas Stuber. October 2004. CASE STUDY. Country A Producer. Country B Vendor´s Sales office. Country C Provider. Country D Purchaser. Business to Business (B 2 B). Business to Consumer (B 2 C).

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UNFAIR COMPETITION IN INTERNET SALES IN BRAZIL

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  1. UNFAIR COMPETITION IN INTERNET SALES IN BRAZIL By Walter Douglas Stuber October 2004 Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  2. CASE STUDY Country A Producer Country B Vendor´s Sales office Country C Provider Country D Purchaser Business to Business (B 2 B) Business to Consumer (B 2 C) X(claims raised by competiton of the vendor) Country E Final Consumer GOODS BUYER Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  3. Unfair Competition The Brazilian law represses two kinds of unlawful competitive acts: 1. Unfair competition 2. Infringement of the economic order Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  4. Unfair Competition Unfair competition relates to the means used by businessmen to gain customers/clients. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  5. Unfair Competition • Specific: Described in the law. • Generic: Extra-contractual liability. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  6. Specific Unfair Competition • It is the fraud in obtaining or disclosing information about a competitor. • Relates to consumer mislead. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  7. Generic Unfair Competition It is characterized by the use of immoral, dishonest means or means that are generally unacceptable in the business community. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  8. Forms of Repression • Civil repression – ensures the aggrieved businessman proper recovery for losses sustained. • Criminal repression – determines the discontinuation of the business activities until effects cease. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  9. Criminal Legal Actions • Criminal action – unfair competition crimes dealt with by the Industrial Property Law (Art. 195 Law nº 9279/1996). Punishable with three-month to one-year imprisonment or payment of fine. • Motion for TemporaryRelief by Search and Seizure – unlawful act is first confirmed, court order is then enforced and products are seized. In addition to seizure, the destruction of products may be determined. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  10. Civil Legal Actions • Action for Damages – to seek anticipated court ruling in order to cease violation and the imposition of daily fine where there is failure to comply. - Preliminary injunction will be granted to avoid irreparable or hardly reparable damage. - The Court may determine the offering of guarantee before granting the preliminary relief. - Indemnification will be calculated based on the benefits the aggrieved party would have earned was not for the violation. - It is possible to file a motion for preliminary relief first to cease a violation or act. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  11. Civil Legal Actions • Action for Obligation Not to Do • - It is to cease unfair practices by motioning for anticipated court ruling to stop a violation from continuing and impose daily fine in the case of failure to comply. • - Preliminary relief will be granted to avoid irreparable or hardly reparable damage. • - The Court may determine the offering of guarantee before granting the relief. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  12. Civil Legal Actions • Motion for Temporary Relief by Search and Seizure of Goods Applicable in the case of reproduction or undisputable imitation of trademark, and may seek destruction of goods. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  13. E-commerce Validity Requirements • Electronic Agreements • Capacity of the parties to contract – parties’ capacity is measured as they identify themselves. • Lawful object. • According to the law. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  14. E-commerce • Place of the electronic contract And consequently: - The competent jurisdiction for legal actions; - Will determine which law will govern the contractual relationship. Regarded as the place of residence of the person who proposes the obligation. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  15. Conflict of Law/ Jurisdiction If obligation is created abroad, the Brazilian Courts will have jurisdiction Article 435 of the Civil Code establishes that the place where an agreement is made is the place of jurisdiction. • When the defendant is domiciled in Brazil. • When the obligation is to be satisfied in Brazil. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  16. Defendant is domiciled in Brazil: The Brazilian Law applies Country A Producer Country B Vendor´s Sales office Country C Provider Country D Purchaser X(claims raised by competiton of the vendor) Country E Final Consumer GOODS BUYER Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  17. B) The obligation is to be satisfied in Brazil: The Brazilian Law applies Country A Producer Country B Vendor´s Sales office Country C Provider Country D Purchaser X(claims raised by competiton of the vendor) Country E Final Consumer GOODS BUYER Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  18. Recklessness Negligence Malpractice Inaction Personal Property Moral Damage Kind Civil Liability Action or inaction causing damage to third party Fault Action Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  19. Strict Liability Consumer Protection Code Liability deriving from the inherent risk or deal. It relates to the obligation to indemnify irrespective of fault and it is unnecessary to prove the existence of unlawful conduct for the right to indemnification to arise. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  20. Joint Liability Consumer Protection Code All participants in the supply chain are strictly liable for redressing damage resulting from goods and services they offer on the Internet. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  21. Manufacturers Merchants/Vendors Banks Insurance companies Importers Builders Joint Liability Participants in the Production Chain Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  22. Seller’s Liability • To inform consumers of the features and potential risks of their products or services; • To withdraw from the market goods and services that constitute risk and inform relevant authorities of such withdrawal; • To create channels of communication with consumers; • To redress damage caused by their goods and services; • To avoid the occurrence of hazardous events. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  23. Seller’s Duties and Obligations • To educate and inform consumers of their rights and obligations; • To control the quality and safety of goods and services; • To create alternatives for solving consumption conflicts; • To supply spare parts for as long as the product is manufactured and after its discontinuation. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  24. Provider’s Liability • Rule – No liability, because providers are simply intermediaries in the relationship between the person offering and the person buying, and provide information transmission or retransmission services. • In the case of authorship of the provider – provider make and edits information. • Action – information is selected or changed before it is transmitted. Exceptions: Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  25. Provider’s Duties and Obligations • To identify the author and control the contents of messages (where control is possible, liability exists); • To control dissemination of unlawful contents; • The duty of information: whenever there is information about the authorship, there is obligation to inform addressees/users of the potential risks; Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  26. Provider’s Duties and Obligations • To safeguard and secure information; • To keep the secrecy of the information. Pursuant to the Consumer Protection Code: Providers are liable only for defective provision of their services. PROVIDERS ARE NOT PARTICIPANTS IN THE SUPPLY CHAIN. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  27. Bill of Law nº 4906/ 2001 • The consumer protection rules in force in Brazil apply to the e-commerce; • Providers are not accountable for the contents of information being transmitted; • Acknowledges that service providers are criminally and civilly liable where they have unequivocal knowledge of goods being offered and information being transmitted that constitute misdemeanor (minor offenses). Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  28. Applicable Legal Actions Against the seller: • Action for recovery of damage; • Action for damage resulting from inadequate product; • Action for recovery of damage resulting from unfair competition; • Legal measures – due to unfair competition. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  29. Applicable Legal Actions Against the provider: • Action for recovery of damage in the following circumstances: 1. Failure to keep current the information related to the offer being made. 2. Advertise product or price in disagreement with its specifications. 3. Change information in ways that harm consumers. In these cases, the provider will no longer be a mere vehicle of information and will become co-liable with the seller. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  30. Enforcement of Judgments Ratification of Judgment A foreign judgment requires ratification by the Supreme Court to become enforceable. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  31. Enforcement of Judgments The following requirements must be satisfied: • Jurisdiction of the court that handed down the decision (Art. 15, “b”, LICC); • Transit in rem judicatam (Art. 15, “c”, LICC); • Official translation into Portuguese and legalization by the Brazilian Consulate in the country of origin have been attached to the judgment (Art. 15, “d”, LICC); • The national sovereignty, public order and good morals have not been violated. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  32. Process of Enforcement Requirement: Foreign judgment has been ratified. Purpose: Expropriation of debtor’s assets to satisfy a creditor’s claim. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  33. Process of Enforcement Expropriation Auction of debtor’s assets (third party may acquire asset(s)) Adjudication in favor of creditor (creditor will keep the assets on account of credit) Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

  34. Procedure The debtor is summoned to, within 24 hours, pay the debt or list assets for attachment. The debtor may oppose to the execution by filing a motion for stay of execution after depositing in court the amount in collection or by registering an asset of same value as the debt. Palestra_153/2004 / 2035879/-//WS/20-10-2004 14:42:56

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