COPYRIGHT AND INDUSTRIAL PROPERTY. APPEAL TO THE SUPERIOR COURT OF JUSTICE. ACTION FOR DAMAGES FOR UNFAIR USE OF WORK. OMISSION NOT CONFIGURED. VIOLATION OF THE RULES OF PROCEDURE. NOT APPLICABLE. IDEA MATERIALIZED IN A SKETCH. COPYRIGHT. LACK OF PROTECTION. NEW FORMAT. COMMERCIAL USE ALLOWED. PLAGIARISM RULED OUT. APPEAL GRANTED.
1. The alleged violation of art. 535 of the CPC/73 was not verified, because the State Court resolved, in a reasoned manner, all the issues that were submitted to it, expressly and coherently stating all the arguments used. An unfavorable judgment, as in this case, cannot be confused with a denial of judicial service or a lack of reasoning.
2. "An appeal to Superior Court of Justice is an inappropriate way to analyze ordinances, resolutions, regulations or any other type of rule that does not fall within the concept of federal act of parliament" (AgInt no AREsp 325.019/SP, Rel. Min. ANTONIO CARLOS FERREIRA, judged on 03/12/2018, DJe de 13/12/2018).
3. In this case, we are discussing the unauthorized use by the defendant of a graphic format conceived by the plaintiffs, initially presented in a sketch of a website designed to create a platform for agile and easy connection between internet users, suppliers, advertisers and consumers. This sketch had been taken by the plaintiffs to a Notary Public for Documents and, after being presented to the defendant, it was incorporated into its search tools, in a similar graphic format, called "MAGIC WHEEL", which is what the alleged plagiarism consisted of.
4. The Brazilian legal system protects intellectual works, as a rule, through Copyright, when the aesthetic interest of the work prevails; or through Industrial Property Rights, when the prevailing interest is utilitarian (commercial or industrial).
5. The designs and underlying ideas are not protected by copyright rules, but can be reused for new copyright works as well as for industrial and commercial purposes (Law 9.610/98, art. 8).
6. Graphic formats, the result of "[...] an ornamental set of lines and colors that can be applied to a product, providing a new and original visual result in its external configuration [...]" (Law 9.279/96, art. 95), constitute an industrial design, the legal protection of which depends on registration with the National Institute of Industrial Property.
7. In this case, there is no question of registering an industrial design, which is why the intellectual work in question does not enjoy legal protection, and the allegation of plagiarism must be dismissed.
8. Appeal granted.