Infringement Despite Distance: The Bosembecker Case

Author:Mr Maurício Maleck Coutinho
Profession:Veirano e Advogados Associados
 
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In a judgment handed down on December 10, 2014, the Fifth Panel of Rio Grande do Sul's State Court of Appeals found the mark of the defendant, Bosembecker e Cia Ltda, confusingly similar to the mark of the plaintiff's, Bosembeckertur Agência de Viagens e Turismo Ltda's, registered service mark BOSEMBECKER (trademark registration No. 826179452). The court ruled that the defendant's practices constituted unfair competition against the plaintiff (Proceedings No. 0345198-89.2014.8.21.7000, Dec. 10, 2014).

Bosembecker e Cia Ltda (the defendant) argued that the two signs (BOSEMBECKER and BOSEMBECKER SANTA VITORIA DO PALMAR) were dissimilar and that there was no likelihood of confusion among the relevant public because Bosembeckertur Agência de Viagens e Turismo Ltda (the plaintiff), would be marketing its travel agency services in a different city, approximately 150 miles away from the city where the defendant is based. The defendant emphasized that it had never advertised its services in the plaintiff's city and to its public, and that it had never had any customers from the plaintiff's territory, because, from the defendant's point of view, there was no competition between the litigants, i.e., no unfair competition could possibly take place.

Judge Fabiane Borges Saraiva from the First Instance Court of the City of Santa Vitória do Palmar, accepting the defendant's arguments, held that the marks were not confusingly similar in view of the difference between the signs—the defendant's sign included the name of its city, and, most importantly, the litigants were marketing their services in separate cities, each one having its own public...

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