Post by account_disabled on Mar 13, 2024 0:01:53 GMT -5
The 3rd Chamber of Private Law of the Court of Justice of São Paulo condemned the pharmaceutical laboratory EMS for parasitic competition in the sale of the drug Ah-zul, used to treat male erectile dysfunction. According to the TJ-SP, EMS used distinctive signs and made improper reference to Viagra, a medicine from a competing laboratory, Pfizer, the author of the action. The decision was by majority vote.
Compensation for moral damages was set at R$5 million and compensation for material damages will be subject to subsequent settlement. EMS must also promote changes to Ah-zul packaging components, which remind the consumer of the image of Viagra. The decision must be complied with within 30 days, under penalty of a daily fine of R$10,000, limited to R$500,000.
Pfizer alleged that EMS was unfair when it B2B Lead began producing a medicine with the same active ingredient and identical distinctive signs as Viagra — in this case, a blue, diamond-shaped pill. For the rapporteur, judge Alexandre Marcondes, there is no doubt that, when launching its generic, the defendant made use of the distinctive elements of Viagra.
"The case under examination, as can be seen, concerns an undue association, as an act of parasitic competition. This undue association creates the risk of diluting the authors' brand, considered to be highly renowned due to a recent INPI decision, a dilution that should be avoided in favor of protecting the greater value of free competition and everything it represents", stated the judge.
In addition to ceasing the use of Viagra's distinctive signs in Ah-zul advertising, it was determined that the defendant no longer uses the color blue and triangle figures, alluding to diamonds, on the packaging of its medicine. The rapporteur also concluded that compensation for moral damages in the amount of R$5 million would be required.
"Arbitration, in this specific case, is even modest, due to the attractive force that the highly renowned brand has in the market. Furthermore, it cannot be forgotten that compensation for moral damage fulfills a double function, reparatory and dissuasive, so which cannot be set at an amount insufficient to discourage the repetition of the illicit", he concluded.