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São Paulo’s State Court affirms condemnation of a company that sold products similar to Kipling’s goods

The company KIPLING APPAREL CORP. (“Kipling”) filed a lawsuit against VVT MODAS COMÉRCIO, IMPORTAÇÃO E EXPORTAÇÃO LTDA (“VVT”), seeking that it refrained from manufacturing, stocking, marketing, disclosing and using, for any reason, the bags, backpacks and wallet of the “Vivatti” model that, supposedly, would violate the trade dress of the plaintiff’s products.

The lower court granted plaintiff’s request and VVT was ordered to pay damages as a result of unfair competition and immediately suspend the sale of the products in question, under the penalty of a fine in case of noncompliance with the court’s order.

VVT filed an appeal1 arguing that the trade dress of its products was common in the market, not agreeing with the technical expert report produced before the lower court.

However, the Reporter Judge affirmed the lower court’s decision, affirming that the alleged unfair competition resulting from customer  diversion through  fraud, imitation or confusion was effectively demonstrated, with a causal link between the conduct of the appellant and the alleged losses suffered by the appellant”. Besides, the judge defended that, in this case, it would not be necessary to prove the actual damages suffered by Kipling,and that it was enough to have an offer and sale of the products in question.

1Civil Appeal No. 1080716-61.2018.8.26.0100

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