It is no surprise that the Brazilian legal system does not hesitate to offer protection to image sets by cracking down on unfair competition. So much so that the Superior Coirt of Justice (STJ) has already consolidated case law on the subject, including establishing that, for tradedress to be legally protected, the following must be proven: (i) the absence of functional character of the elements; (ii) the distinctiveness of the image set; (iii) the possibility of confusion or undue association; and (iv) prior use (REsp 1.843.339\/SP).<\/p>\n
Precisely in this regard, on 14 August 2025, the Rio de Janeiro Court handed down a decision with major repercussions for the personal hygiene market and the intellectual property sector.<\/p>\n
The case originated in a lawsuit filed by L.R. Nordeste S.A., part of the Leite de Rosas group, against Perfumaria M\u00e1rcia Ltda., alleging infringement of the trade dress of the traditional Barla talcum powder, one of the market leaders in antiseptic talcum powders.<\/p>\n
After more than five years of litigation, the judge of the 7th Business Court of the Capital District of the Rio de Janeiro Court of Justice, Dr. Victor Agustin Cunha Jaccoud Diz Torres, recognised that Perfumaria M\u00e1rcia infringed the tradedress – or image set – of the traditional Barla talcum powder by launching a product with an extremely similar visual identity on the market.<\/p>\n
In sum, the ruling found that there was misappropriation of the distinctive visual elements, such as the iconic combination of blue and yellow colours, an inseparable part of the Barla talcum powder packaging, in addition to the cylindrical shape and graphic layout of the elements. The ruling also included a preliminary injunction, ordering Perfumaria M\u00e1rcia to immediately cease marketing the infringing product and to recall all infringing items available on the market, under penalty of a daily fine and a search and seizure order.<\/p>\n
To substantiate his decision, the judge relied on an in-depth analysis of intellectual property and unfair competition legislation, the case law of the Superior Court of Justice (including the paradigmatic ruling cited in the introduction, REsp 1.843.339\/SP) and, decisively, the expert report produced in the case file, considered essential to the outcome of the lawsuit.<\/p>\n
The expert analysis found that the combination of colours adopted by the plaintiff in its product – the predominance of yellow followed by blue, in a recessive position – was not standard in the relevant market, but rather a distinctive and original choice.<\/p>\n
It was also identified that, although the flip top cap is a common element in this segment, the use of white for this component was not usual, which, together with the other visual elements, reinforced the uniqueness and distinctiveness of the image associated with the Barla talcum powder. Thus, the expert report highlighted that the visual elements appropriated by the competitor – when combined – went beyond the functional realm and became part of a distinctive and protectable set.<\/p>\n
The study also noted that the marketing of Talco Sport by Perfumaria M\u00e1rcia began after the Barla line had become established in the market. It also observed that, at the time of the launch of the defendant’s product, there was no established trend or pattern of products with such similar image sets, nor was there any other economic agent with a presentation so close to that of Barla talcum powder. In this regard, it concluded that Talco Sport was closer to the image set of Barla talcum powder than to the few third-party products that shared some relevant visual element.<\/p>\n
Furthermore, it was identified that the defendant’s product \u2018came too close\u2019 to the distinctive aspects of the Barla talcum powder and that such conduct could not be justified by the so-called \u2018Distance Theory.\u2019 Furthermore, the evidence in the case file showed that the plaintiff had always acted to prevent the consolidation of a market standard based on its image set, striving to preserve visual disparity in relation to other products in the sector.<\/p>\n
In conclusion, the technical analysis pointed to the likelihood of undue association between the two products. This association resulted from the defendant’s choice of an image set that was too similar to that of Barla, in particular due to the dimensions of the container, the use of a white flip-top lid and, above all, the adoption of the unusual combination of yellow and blue colours – in that order of predominance – in the relevant market.
\nAccepting these conclusions, the ruling then recognised the defendant’s unlawful competitive practice. The court found the distinctiveness of the image set of the Barla brand product, noting that the defendant’s line began to be marketed after the plaintiff’s line was already present on the market, dismissing the excuse of the Distance Theory. Thus, it concluded that the overall presentation of the plaintiff’s Barla talcum powder and the defendant’s Talco Sport talcum powder was sufficiently similar for the coexistence of the products to cause undue confusion among consumers.<\/p>\n
With regard to the claims for damages, the decision recognised the occurrence of moral damages in re ipsa, due to the vulgarisation of the plaintiff’s original product and the consequent depreciation of its reputation among its customers. On this point, it set the compensation at R$ 30,000.00, considering the seriousness of the conduct and the impact on the market. As for material damages, it determined that they should be assessed during the settlement phase of the judgement, given the finding of misappropriation of the economic benefit generated by the parasitic use of the tradedress.<\/p>\n
Although still subject to appeal, the decision reinforces the understanding that the protection of tradedress, provided it is based on objective criteria, is of paramount importance, since it affects the visual aspect that imposes itself on the consumer’s imagination. It also reaffirms the relevance of protecting the image as a whole as an effective tool for combating unfair competition, highlighting that the visual identity of a product, when endowed with measurable distinctiveness, deserves judicial protection.<\/p>\n
The ruling contributes to consolidating, in Brazil, the understanding that tradedress is a strategic asset for companies and that its violation gives rise not only to injunctive relief, but also to moral and financial compensation.<\/p>\n
By recognising the uniqueness of the colour combination and graphic arrangement that characterise Barla talcum powder, Courts signal to the market that investment in visual identity cannot be freely appropriated by competitors and reaffirms the importance of tradedress protection as an essential tool for market differentiation. In an industry where the consumer’s immediate perception defines shelf space and purchasing decisions, safeguarding pioneering and traditional image sets means protecting their history, value, and competitive edge.<\/p>\n
_______<\/p>\n
1 According to Denis Borges Barbosa, when analysing counterfeiting, prior art or collision, the senior trademark or trade dress only has the same scope of protection against the junior trademark or trade dress as it has against the common domain of the market. Denis Borges Barbosa. The enforceability of a trademark varies with its distinctive strength and time. August 2011, p. 24. Available at:\u00a0https:\/\/www.dbba.com.br\/wp-content\/uploads\/a-oponibilidade-da-marca-varia-com-sua-fora-distintiva-e-o-tempo-2011.pdf<\/a>. Accessed on 1\/9\/2025.<\/p>\n","protected":false},"excerpt":{"rendered":" It is no surprise that the Brazilian legal system does not hesitate to offer protection to image sets by cracking down on unfair competition. So much so that the Superior Coirt of Justice (STJ) has already consolidated case law on the subject, including establishing that, for tradedress to be legally protected, the following must be […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[128,164],"tags":[],"acf":[],"_links":{"self":[{"href":"https:\/\/ids.org.br\/en\/wp-json\/wp\/v2\/posts\/5983"}],"collection":[{"href":"https:\/\/ids.org.br\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ids.org.br\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ids.org.br\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/ids.org.br\/en\/wp-json\/wp\/v2\/comments?post=5983"}],"version-history":[{"count":3,"href":"https:\/\/ids.org.br\/en\/wp-json\/wp\/v2\/posts\/5983\/revisions"}],"predecessor-version":[{"id":5987,"href":"https:\/\/ids.org.br\/en\/wp-json\/wp\/v2\/posts\/5983\/revisions\/5987"}],"wp:attachment":[{"href":"https:\/\/ids.org.br\/en\/wp-json\/wp\/v2\/media?parent=5983"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ids.org.br\/en\/wp-json\/wp\/v2\/categories?post=5983"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ids.org.br\/en\/wp-json\/wp\/v2\/tags?post=5983"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}