Damage constitutes an essential element of civil liability, and in view of articles 186 and 927, “caput” of the current civil code, compensation without effective patrimonial or extra-patrimonial loss is not conceived, given its primary character of compensation, with the restoration of the situation of the injured party. Flamengo flamengo clube sued a company that imported counterfeit products with its brand with this understanding, the 1st chamber of business law of the court of justice of são paulo denied flamengo's request for compensation for moral and material damages from a company that imported more than 200 kilos of counterfeit products bearing the club's brand. The cargo was seized by the federal revenue service as soon as it arrived in the country at guarulhos airport.
The goods, however, did not enter the national market, due to retention by customs inspection, being detained at guarulhos international airport, in addition to the fact that no goods were found at the defendant's commercial establishment, so that there was no actual damage to the author”, said the rapporteur, judge fortes barbosa. In view of the examination of the evidence, the rapporteur Honduras Mobile Number List spoke of “effective certainty regarding the practice of an act of violation of industrial property owned by the author, but without the proposed consequences”. In barbosa's understanding, as the counterfeit products were not sold, there was no loss to flamengo that justifies compensation for moral and material damages. “we cannot consider presumed damage resulting from potential commercialization, which did not materialize due to the retention of the goods, the non-availability of the seized goods to the consumer market.
In addition to the fact that nothing was found with improper use of mark of ownership of the author in the defendant's establishment”, added the judge. Barbosa stated that there is no doubt that the seized merchandise was manufactured clandestinely, without adequate authorization, however, “the illicit practice did not produce any effective practical consequences from a marketing point of view, hindering the distribution and commercialization of the products seized by the authorities customs authorities, who acted preventively and prevented damage from being caused”. Finally, the rapporteur concludes that it is not possible to convert compensation into a fine and impose a civil penalty without a specific legal provision in advance, “which is not conceivable and does not comply with the rules relating to the discipline of civil liability”. “no damage was caused and, therefore, there is no compensation to be made,” he said.
