2023-06-09 20:58:51
At the end of last month, we announced that the case of Apple against to Gradient would be judged by the virtual plenary of the Supremo Tribunal Federal between the 2nd and 12th of June. The judgment of Extraordinary Appeal with Appeal No. 1266095 started with a vote in favor of the Brazilian company, by the minister toffoli days (case rapporteur), and two opposites — from Luiz Fux e Roberto Barroso.
Occurs that, as reflected by Economic valuethe minister Alexandre de Moraes asked to see the case — a request made with a view to further analysis — and the trial was adjourned. Now, there is a maximum period of 90 dias for the dispute to return to the court’s agenda and a decision to be taken, which should happen by the day September 8th.
The fight began in 2012, when Apple sued Gradiente, asking the National Institute of Industrial Property (INPI) to annul the registration that the Brazilian company had made of the “Iphone” brand, whose request took place in 2000, but which only it was granted in 2008. Since 2012, the case has been dragging its way through all instances of the Judiciary, until then with Apple winning the case.
As remembered the metropolises, Apple’s lawyers stated that the company has used the “iPhone” brand to refer to cell phones since 1998, even though the first iPhone model itself had not yet been launched. It was also highlighted that Gradiente has already registered several generic terms such as “DVD” and “3G” as its trademarks.
Currently, the STF has only ten members, considering that the former minister Ricardo Lewandowski retired. Furthermore, the minister Edson Fachin declared himself — for reasons still unknown — a suspect in the case between Apple and Gradiente, so he will not vote and, therefore, there should not be a tie between the judges.
Under the court system, Gilmar Mendes, in advance, declared that he accompanies the rapporteur — that is, he positioned himself in favor of Gradiente. Toffoli understood that the delay in granting the registration and the fact that a foreign company had registered the “iPhone” trademark would not prevent its exclusive use by the Brazilian company.
Fux and Barroso, in turn, stuck to the specific case, stating that Apple “effectively developed and worked for the success of the product”, and that a decision against the Cupertino giant would mean harm to the consumer. Barroso also understood that Gradiente could use the brand “Gradiente iPhone”.
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