Civil Procedure In Brazil: A New Legal Broom

One of the most important jurists in Brazilian history, the former diplomat and lawyer Rui Barbosa, once said: "Delayed justice is not justice, but qualified and manifest injustice." After more than 40 years in force, Brazil is saying farewell to its Code of Civil Procedure (Law No. 5.869 of 1973), which governs the proceedings of most kinds of civil lawsuits in Brazil, from family issues to contracts and intellectual property rights enforcement. Often criticised for allowing multiple appeals and having overly bureaucratic proceedings, this law was seen as one of the reasons behind the unreasonable duration of court proceedings and, in some cases, their consequent inefficiency.

In response to public demand and after many years of debates involving judges, politicians and jurists, Brazil has now enacted a new code (Law No. 13.105 of 2015), which will come into force in March 2016 for all new and pending lawsuits. Briefly, this new law not only consolidates all rules issued in the last decade to expedite court proceedings, but also creates a completely new procedural system, focused on providing fast and effective solutions to all kinds of legal disputes, and meeting the difficulties and challenges of modern litigation.

The IP story

There are changes, especially concerning the enforcement of IP rights, which positively affect the strategy of IP protection and litigation in Brazil.

In this regard, one of the most important legal instruments available for rights owners involved in infringement actions is a preliminary injunction. It can be granted to immediately halt, for example, an act of unfair competition or passing off, and therefore avoids the damages arising from long-term ligation until a final decision is rendered.

Given its relevance, the new code includes special provisions for preliminary injunctions stating that if the losing party does not appeal against an injunction order granted by the judge, it becomes final, closing the whole lawsuit. The losing party would need to start a new court action to try to overturn the injunction.

For IP owners, these new provisions should be considered very advantageous for resolving litigation in a short time (sometimes in just a few weeks) and consequently with reduced costs, mainly in cases against smaller companies or individuals.

The law also brings relevant changes regarding injunction actionsusually filed before the main lawsuit with the purpose of obtaining a report from a court's technical...