The principle of consumer vulnerability in the face of trademark rights

Abstract

The article examines the challenges of trademark rights within industrial property law when set against consumer vulnerability. It reconstructs the legal force of principles in their natural-law, positivist and post-positivist phases, drawing on Bonavides and Alexy, and distinguishes rules from principles by the criteria of generality, gradation and quality. It then delimits the principle of consumer vulnerability as drawn from article 4 of the Consumer Protection Code and from Rizzatto Nunes's commentary, pointing to the technical and economic weakness of the consumer in the consumer relationship. It moves on to the regime of Law 9,279/96, the Paris Convention, the TRIPS Agreement and the role of INPI, and discusses article 124, XIX, and the principle of speciality on the basis of a Superior Court of Justice ruling on the Crescer trademark, in which distinct activities within a single class gave rise to a risk of confusion. It concludes that the courts have been guided by consumer protection, allowing the principle of vulnerability to prevail over trademark rights where there is a risk of error in the consumer market.