According to a recent decision¹ issued by the State Court of São Paulo, comparative advertising results in indemnification when it is considered derogatory.
In the case at hand, the Court held that the use of the sentence “If you do not behave, Santa Claus will bring you Itaipava” in the advertisement of another beer company intended to offend the competitor’s reputation, and, therefore, it was considered abusive and disloyal. Even if the parties were not competitors, the defendant would not be allowed to infringe the plaintiff’s reputation and trademark rights by means of a satire with the purpose of depreciating the mark.
The appeal was dismissed in order to fully uphold the lower court’s decision, as the amount of damages would have been set in accordance with the reach of advertising works disclosed in social networks.
¹Lawsuit no. 1002219-58.2016.8.26.0082