Recently, screenwriter and podcaster Camila Fremder, creator of the popular show É Nóia Minha?, became the subject of social media buzz after an unusual incident involving similarly named podcasts. Camila revealed that she agreed to participate in Vênus Talks, believing it was Vênus Podcast, which is associated with the Flow Network. Upon realizing the mistake, she publicly clarified the situation, sparking discussions among content creators and legal professionals about the precautions necessary when it comes to trademark identity in digital media.

While it may seem like a simple misunderstanding, situations like this can lead to serious consequences, both in terms of public image and legal implications. The similarity between the names of products or services, especially in creative industries such as podcasting, can constitute trademark infringement if it results in confusion or a false association in the mind of the consumer.

Trademark protection and the legal consequences of infringement

In Brazil, trademarks are protected under the Industrial Property Law (Law No. 9.279/96). According to this legislation, a registered trademark grants its owner exclusive rights of use throughout the national territory, within the specified field of activity. If a registered trademark is used without authorization by third parties, or if a distinctive sign is used in a way that may cause confusion with an existing trademark, trademark infringement can be claimed. 

Possible legal measures include:

• Administratively: The trademark owner may file an opposition to a similar trademark application or request the nullity of an already granted registration with the Brazilian Patent and Trademark Office (INPI);
• Judicially: The trademark holder may file a lawsuit for infringement, seeking to stop the unauthorized use, obtain compensation for damages, and request the seizure of infringing materials;
• Extrajudicially: It is also possible to seek an amicable agreement, requesting the withdrawal of the trademark application or the cessation of use.

It is worth noting that bad faith is not a necessary condition for infringement. The mere risk of confusion or undue association between trademarks may be sufficient to characterize a violation.

What happens if the company hasn’t registered the trademark and a third-party files first?

When a company or project uses a name, logo, or visual identity without registering it with INPI, it runs the risk of losing the exclusive right to use that trademark. This is because, in general, Brazil follows the first to file system, meaning that exclusive rights are usually granted to the party that files for registration first, not necessarily the one that used the trademark first.

If a third party files the application earlier, they may obtain legal rights over the mark, provided they meet the legal requirements and are not acting in bad faith. The original user may try to challenge the application or request its cancellation based on prior use, but such litigation is complex, technical, and not always successful, since it is necessary to submit evidence of previous use of the trademark at least 6 months before the filing date of the application (and an application for the mark must be filed).

Therefore, registering the trademark from the beginning is a crucial step to safeguard your rights and prevent future disputes.

A importância da busca prévia e da assessoria jurídica

Despite the memes and the lighthearted way in which Camila Fremder handled the situation, the Vênus Talks vs. Vênus Podcast case highlights how critical it is to conduct a preliminary trademark search before launching a new trademark, project, product, or communication channel. Checking the INPI database is essential to ensure the desired name isn’t already registered or too similar to existing ones, which could lead to confusion.

In addition, having the support of a legal team specialized in Intellectual Property can help avoid future conflicts by offering guidance from the early stages of a project through registration and any necessary enforcement actions. A preventive legal approach is often more effective, and more economical, than facing a full-blown legal dispute.

Unsure about using a certain trademark or going through a similar situation? Talk to our Intellectual Property experts and learn how to protect your trademark and avoid legal issues down the line.

Learn more about Podcasts and Intellectual Property in Brazil at: https://riccipi.com.br/podcasts-e-propriedade-intelectual/