The New Brazilian Civil Procedural Code and its relevance to the protection of intangibles
by Felipe Corrêa Rocha (Vaz e Dias Advogados e Associados – Brazil)
A New Civil Procedural Code (NCPC) – Federal Law 13,105 / 2015 – has entered into force on March 18, 2016 and inserts new instruments to increase the enforcement of rights in Brazil.
The NCPC aims to make the court proceedings faster and less complex, which are relevant attributes to those seeking to enforce their rights in the country, especially those of intangible nature and protected by intellectual property rights. After all, a fast and an effective court system ensure the exercise of the exclusive rights on a patent or trademark, and reduce the costs of resolving conflicts that are not possible to be settling by amicable manners.
Speed as focus
The NCPC recognises that the effective satisfaction of the plaintiff and defendant can be secured more adequately if the solution is reached mutually by them, rather than imposed by the judge. Thus, the new law has emphasized the possibility of the parties to put an end to the conflict by mediation or conciliation within the court proceedings.
Simplicity has also been incorporated into the appeal system, since obsolete and diverse appeals processes adopted in the prior law have been deleted. A uniform time frame to file appeals was set to be fifteen (15) working days after a decision is issued, with the exception to the requests for clarification appeal.
The NCPC also brings innovations with the so-called “procedural agreement”, which is a mechanism that allows litigants to enter into an agreement in relation to the adoption of specific procedures that are tailored to their interests and to the nature of the court action.
No doubt this is a significant change, inspired by arbitration proceedings. This innovation is expected to promote faster and better quality solutions to a court action, insofar as the litigants in proceedings may cooperate to avoid unnecessary costs and proceedings that could delay the court procedure.
Another exciting improvement to court proceedings relates to the grant of injunctions, which may be now ground on urgency or evidence of rights.
Both in the case where there is a risk of losing a right (urgency) and in the event that strong claims and rights of one of the parties (evidence) provide the foundation for an injunction, regardless of the presence of periculum in mora, the plaintiff may receive a preliminary injunction to safeguard its rights and stop the infringement.
An injunction grounded on evidence is a novelty since it increases the protection of intangibles. It was not rare to see a Brazilian judge refuse the grant of injunctions due to the absence of periculum in mora. Following the new procedure, judges may not refuse to grant injunctions when plaintiff proves the existence of strong rights, notwithstanding the fact that the measure is not urgent and the infringed right could be later repaired financially.
In the new system, the injunction based on either urgency or evidence may be requested prior or during the course of the main suit. In this perspective, if the injunction is granted with no opposition from the defendant, the injunction will be maintained and the court action will not require examination of the merits. This procedure has received the name of “preliminary injunction stabilization”.
Certainly, the NCPC brings important innovations to court actions in Brazil, representing an indispensable tool for the protection of intangibles in the country.
These are some of the innovations introduced by Law No. 13,105 / 2015, which effects are yet to be examined.