STJ: in the context of offensive comparative advertising, material damage is not applicable without proof

STJ: in the context of offensive comparative advertising, material damage is not applicable without proof

The STJ issued a decision in a lawsuit involving offensive comparative advertising, stating that it is not possible to impose the obligation of compensation for material damages without proper proof of damage.

The decision was based on a case involving two companies in the automotive sector. One of the companies aired an advertising film comparing its brand with that of other competing companies, including the plaintiff.

Understanding that the advertisement in question was harmful, the plaintiff filed a lawsuit requesting the cessation of the advertisement and asking for moral and material damages for the undue advertising.

The decision of the Rio de Janeiro State Court (TJ/RJ) stated that comparative advertising is allowed in the national legal system but must follow certain criteria in order not to violate the rights of the compared competitors. In this case, the court found that the defendant’s advertising was abused, considering that it had a provocative tone and that it offended the competitor’s brand and, therefore, moral damages would be due. However, the court did not accept the request for material damage, on the grounds that these were not properly demonstrated.

The plaintiff appealed to the STJ claiming the payment of material damage. In a monocratic decision, Justice Filipe Salomão accepted the plaintiff’s argument. However, the decision was subject to an appeal, and the defendant’s claim was analyzed by the collegiate of the Fourth Panel of the STJ, with a new rapporteur.

In this new trial, the panel, by majority, reversed the monocratic decision and upheld the decision of the TJ/RJ, recognizing the existence of moral damage in favor of the plaintiff, but denying the payment of material damages.

According to the decision of the Fourth Panel, unlike trademark law that has provision for material damages in re ipsa provided by law, the provision of this type of damage in the context of undue comparative advertising has no legal provision. Thus, the panel understood that “not proven, in the knowledge phase, the occurrence of material damage, that is, without having been timely characterized as a debeatur, it is not possible to leave for the settlement phase the identification of the quantum debeatur”.

Link to the full content of the Judgment: https://scon.stj.jus.br/SCON/GetInteiroTeorDoAcordao?num_registro=201801029704&dt_publicacao=05/07/2023