The Industrial Property Law (Law nº 9.279/96) establishes mechanisms for the holder of the violated right, whether trademark, industrial design or patent, to receive from the infringer a pecuniary compensation for the material and moral damages (or off-balance sheet) that resulted from the illicit act. As established by art. 209 of that law:
Art. 209. The injured party is exempt from the right to have losses and damages in compensation for losses caused by acts of violation of industrial property rights and acts of unfair competition not provided for in this Law, tending to harm the reputation or business of others, the create confusion between commercial or industrial establishments or service providers, or between products and services put on the market.
Article 210, in turn, sets the criteria for calculating lost profits (property damage):
Art. 210. Loss of profits will be determined by the criterion most favorable to the injured party, among the following:
I – the benefits that the injured party would have received if the violation had not occurred; or
II – the benefits that were obtained by the author of the violation of the right; or
III – the remuneration that the author of the violation would have paid to the holder of the violated right for the granting of a license that legally allowed him to exploit the property. Read more