In Brazil And The IP World, It’s Tropicalization Time!

By Benny Spiewak, KLA-Koury Lopes Advogados, Sao Paulo, Brazil

There used to be a time when Brazil meant almost exclusively Carnival, Samba and Soccer. During that period, Brazil was referred to as Tomorrow’s Country, and the business world looked at Brazil as a market-to-be. Well, seems like those days are over and there is a sole, undeniable message that needs to be echoed through the knowledge-based, creative, innovative world: Wake-Up, World, It’s Tropicalization Time!

While Brazil celebrates the Carnival and the claim that it is the fifth largest economy in the world, some data-mining highlights that the Brazil may be all but relaxed when it comes to IP and knowledge-related policies. In a well-developed and absolutely focused strategy that resembles a goal-resulting soccer play, Brazil became a major stakeholder in the world’s IP and trade-related policies. From the drug transit case, which brought the BRIC’s B and I even closer, to the analysis of WHO’s relationship with the IMPACT taskforce, Brazil’s takes on IP and international trade are duly noted.

For instance, one cannot help recalling the valuable WTO decision on the longstanding upland cotton case that entitled Brazil also to seek to suspend certain obligations under the TRIPS Agreement [the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights]. The decision clearly leveraged the Brazilian position towards its commercial relationship with the US. However, instead of materializing the wishes of an angry crowd that wanted Brazil to cross-retaliate Brazil-based US IPRs, Brazil concluded with the US the so-called Framework for a Mutually Agreed Solution to the Cotton Dispute. Brazil’s position on the matter was a clear statement that Brazil is not an anti-IP guinea pig, but rather a strong strategist and consistent international player.

Still, the indirect gains of Brazil are still to be measured and are likely to highlight the Brazilian position in the wake of the Doha Development Round and, most of all, push a reassessment of the way the US presents the USTR’s Special 301. In fact, the day Brazil is excluded from the Special 301 watch list is approaching and Brazil may then be granted an informal investment grade for IPRs. When that time comes, the WTO-related cotton decision should not be held the solely responsible for that.

The Brazilian Government established a clear, superb commitment to address Brazilian IP challenges and to tackle the main worms infecting the knowledge-based system, e.g. counterfeited products and piracy. The results are outstanding and the industry is starting to acknowledge the new scenario. Brazil will soon share successful cases in the war against IP violations and those lectures will be crowded, as Brazil echoes the voices of the developing and emerging economies.

The Brazilian coordination of WIPO’s Committee on Development and Intellectual Property says it all. Clearly, the Brazilian takes on the UNFCCC’s Development and Transfer of Technologies discussions and on the negotiations resulting in the Nagoya Protocol are not Brazil-only evaluations, but rather common statements echoed by a strong player, that aims at enhancing its international importance, as well as leading by example.

All in all, it is a fully acceptable argument that the current Brazilian position in the international arena is new, and thus, hard to measure. However, it is not commercially acceptable – and could be a mistake – to disregard Brazil’s up and coming importance, mainly in the IP field. In brief, it is Tropicalization Time. Have you tropicalized yourself already?

Benny Spiewak heads the Intellectual Property, Life Sciences and Innovation practice at KLA-Koury Lopes Advogados, in Sao Paulo, Brazil. Mr Spiewak graduated (LLB) from the University Mackenzie Law School in Sao Paulo and obtained his Master’s in IP Law certification (LLM) from the George Washington University in Washington DC. Mr Spiewak is an IP & technology law expert, certified by the Franklin Pierce Law Center in Concord, New Hampshire, and by the Getulio Vargas Foundation Law School, in Sao Paulo. In 2008, Mr Spiewak was an intern at the IP office of BIO-Biotechnology Industry Organization in Washington DC, and attended the Summer School of the Academy of the World Intellectual Property Organization in Geneva. Mr Spiewak coordinates the International Affairs Committee at the Brazilian Intellectual Property Institute.