The preservation of internet connection data and of user access to websites and applications is of utmost importance in the identification of those responsible for infringing industrial property rights in the online environment and, consequently, in the adoption of measures that aim to remedy these infringements.
Before the entrance into force of the Civil Rights Framework for the Internet (Federal Law 12965/2014), it was common practice for internet companies to supply lawyers with the identification of users involved in unlawful practices, without the need to resort to the courts. For example, large e-commerce websites frequently informed the holders of registered trademarks of the details of users that sold counterfeit products.
With the purpose of protecting intimacy and privacy, the new Law now requires a court order for the records of user access to be supplied. This results in the placing of a barrier to holders of infringed industrial property rights.
The new Law also creates the need for a court order for internet companies to remove unlawful content published on their platforms. Furthermore, the law requires that the court order clearly and specifically identifies the unlawful content to be removed, which can be quite difficult in certain situations. As an example, consider the announcement in search websites of products identified by expressions that imitate registered trademarks. The individual identification of all the results returned by the search website for a specific imitated trademark is practically impossible.
However, there are exceptions. The Civil Rights Framework for the Internet did not alter the discipline of copyrights. Accordingly, when the unlawful content infringes these rights, it is sufficient for the offended party to notify the internet company to remove the content published by its users, as happened previously. Furthermore, experience has shown that large internet companies - such as e-commerce websites - have dispensed with the requirement of a court order and removed content that is indicated as unlawful as soon as they are notified by the holders of the infringed rights.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.