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Brazil: Monopoly in the Competition Protection and Monopoly in the Production Protection

Document Citado por Relacionados
Vincent
AutorMarcel Antonio Neme
CargoFaculdad de Derecho en la Universidad de São Paulo. Brazil

It is inevitable to set a distinction between the monopoly in the competition protection and the monopoly in the production protection, since said concepts have influenced the elaboration of regulating rules for the intellectual activity and economic order.

In principle, we understand that the monopoly in the competition protection is harmful to the economic order, taking into consideration that the economic order concentration makes the abuse of said power by the party that holds it possible and easier. It is hereby worthy to highlight that part of the doctrine understands that monopoly, on its own, is not harmful to economy, since it is more important to obtain a better efficiency in production, what would bring about costs reduction and consequent sale price reduction, hence consumer would benefit from it. However, what occurs is that a product’s sale price reduction may be questioned, if reached due to efficiency in production, in a monopolist market. In other words, there would be no interest for the producer to act in such a way.

Paradoxically, monopoly in the competition protection is beneficial to the economic order to the extent that it increases competition among producers.

The economic order set forth in the Constitution of the Federative Republic of Brazil, dated 1988, in its article 170, is based on the valorization of human labor and free initiative, with the purpose of guaranteeing a condign existence to everybody, respecting some principles, and among them is that of free competition.

Article 5, subparagraph XXIX of the Federal Constitution, sets forth the utilization temporary privilege to the authors of industrial inventions, as well as protection to industrial creations, trademarks property, corporate names and other distinctive signs, taking the social interest, and technological and economic development of the country into consideration.

In article 2 of Law 9.279/96, when listing the ways by which protection to the rights relating to industrial property is carried out, the legislator again observed the social interest, and technological and economic...

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