por Mauro Ivan C. R. dos Santos
11 de outubro de 2004
H Stern Comércio e Indústria SA, one of Brazil’s most prominent jewellers, has appealed a decision by the Upper Court of the State of Rio Grande do Sul that held the company liable for the copyright infringement of a range of jewellery designed by local artist Maria Bernadete Conte.
In the 1980s Conte carried out extensive research into the art of the Brazilian Indians with the intention of creating a range of jewellery based on this traditional material. In 1988 Conte presented the project to H Stern with the hope of entering into a merchandising agreement. No such agreement was reached.
Six years later, H Stern launched a collection of jewellery inspired by Brazilian Indian art, which Conte believed to be similar to her own range. A cease-and-desist letter sent to H Stern did not result in a settlement, so Conte sued the jeweller for copyright infringement. The trial judge found for H Stern, and Conte appealed. The 10th Panel of the Upper Court of the State of Rio Grande do Sul reversed the trial judge’s decision, granting Conte’s claim.
H Stern sought a plenary decision of the upper court on the grounds that one panel member had cast a dissenting vote. Conte submitted new statistical evidence illustrating that the similarities between the collections were not the result of mere coincidence. Conte claimed to have identified around 10,000 different elements of Indian art, which were then grouped into 13 distinct categories and submitted to a mathematical expert, who concluded that the chances of the similarity between the designs being coincidental was one in 1 million. Although some viewed the methodology as controversial, it demonstrates an innovative approach in an area permeated by subjective assessment.
The plenary court upheld the panel’s award, ruling that H Stern should pay economic and moral damages to Conte. H Stern has now appealed to the Higher Court of Justice. If the plenary decision is affirmed, it will set an important precedent for independent jewellery designers in Brazil, who do not often have sufficient awareness of – or motivation to assert – the IP rights in their designs.