The Brazilian Superior Electoral Court upholds ban on use of trademarks in election advertising

The Brazilian Superior Electoral Court upholds ban on use of trademarks in election advertising

The Brazilian Superior Electoral Court (BSEC) issued a ruling in July this year, during an administrative session, renewing its position that prohibits the use of a trademark or product in any and all forms of electoral advertising, as provided for in electoral legislation. The ruling came in the context of a public consultation made by federal deputy Simone Aparecida Curraladas dos Santos.

In the public consultation, the deputy asked two questions: first, whether the ban on the display of commercial brands or the broadcasting of propaganda with the intention, even if disguised or subliminal, of promoting a brand or product, should cover all types of electoral propaganda. It then asked whether the protection contained in art. 25, § 1, of BSEC Resolution 23.609/2019, would extend to the use, by a candidate, of a ballot box name that contains a trademark, acronym or expression belonging to a private company.

With this in mind, the court unanimously acknowledged the query and, by a majority, answered the first question in the affirmative and the second question in the negative.

With regard to the first question, the position was that the “exposure of commercial brands or the broadcasting of propaganda carried out with the intention, even if disguised or subliminal, of promoting a brand or product covers all types of electoral propaganda”.

With regard to the second, Justice Carmen Lúcia ruled that the use of a trademark in the name of a candidate’s ballot box is prohibited. Carmem Lúcia explained that “there is undue exploitation of these brands, which become advertisements. We must prevent the use of acronyms and expressions, which are public in nature, from abusively benefiting any candidacy. These entities, although private in nature, have public repercussions.”

However, the rapporteur of the case, Justice Raul Araújo, disagreed with Justice Carmem Lúcia’s position, and was followed by the other Justices.

Regarding the use of a candidate’s name in an electronic ballot box, art. 25, § 1, of TSE Res. 23.609/2019 states that “the use of expressions or acronyms belonging to any federal, state, district or municipal public administration body, direct or indirect, shall not be permitted in the composition of the name to be inserted in the electronic ballot box”.

Thus, the position of the reporting minister, followed by the majority of the judges, was that “the restriction contained in art. 25, § 1, of TSE Res. No. 23.609/2019, does not extend to the use, by a candidate, of a ballot box name that contains a brand, acronym or expression belonging to a private company, provided that it does not violate modesty and is not ridiculous or irreverent or generates doubt about identity”.

The BSEC’s decision can be accessed via the link: CONSULTA (11551) Nº 0600188-95.2024.6.00.0000  

Note: For quick release, this English version is provided by automated translation without human review.