In many cases, however, lack of registration leads to loss of exclusive right to a product, character or musical composition.
Can Renato Arago no longer be called Didi? At the beginning of September 2023, several websites posted that comedian Renato Arago had lost the right to commercially use the name Didi, his most famous character. The reason would be the registration made with the National Institute of Industrial Property (Inpi) by Beijing Didi Infinity, a Chinese urban mobility company. The character Didi Moc, played by Renato Arago on the television program Os Trapalhes, became so famous that the comedian himself became better known as Didi than by his real name, guaranteeing a captive place in the history of Brazilian comedy and in the collective memory. of the people. However, the Didi brand was never registered by the comedian’s company, Renato Arago Produes Artsticas Ltda.
Does this mean that Renato Arago can no longer use his character’s name? Here, there are two aspects that converge on the use of intellectual property: trademark rights and copyright rights. As ESPM professor Gustavo Cesrio, specialist in branding and intellectual property and partner at K+G Cesrio Opinions and Research, explains: In the world there are two forms of granting trademark rights (right to use a brand): first to use and first to filet. First to use determines that the first to use a trademark commercially who has the right to it. Countries such as the USA, Canada and Australia adopt this form of granting legal rights.
However, the ESPM professor continues, to have full rights to a trademark, it needs to be registered. If we take Uspto as an example (the American body equivalent to our Inpi), if there are two identical brands seeking registration, this body will grant registration to the brand that demonstrates its previous use.
First to file determines that the first person to file an application for trademark registration is the one who has ownership over it. This is the way trademark registration is granted in most countries around the world, including Brazil, the European Union and China. Therefore, as Renato Arago Produes or the comedian Renato Arago himself never asked to register the Didi brand, the Chinese company Beijing DiDi Infinity Technology Development Co., Ltda. was able to obtain registration of the Didi brand in 13 different classes of product or service, including class 41, which encompasses entertainment services.
Therefore, in Professor Cesrio’s opinion, Inpi acted correctly within the Brazilian legal system for registration. It is important to highlight that there was not even any opposition from Renato Arago Produes during the examination phase of the registration request by Inpi.
On the other hand, the registration of the Didi brand by the Chinese company does not prevent the use of the famous character by the comedian, as the character’s intellectual protection is provided by copyright, not trademark law. Copyright over any artistic, literary or musical creation arises when such creation is externalized. In other words, registration is not necessary. What is only important is proving that on that specific date there was that creation. Therefore, whoever first created a certain character, like Didi, who has the copyright over it, explains Professor Cesrio.
He also remembers that, while trademark protection is valid for 10 years, and is renewable for periods of 10 years indefinitely, copyright has a time limitation before it falls into the public domain. In Brazil it is 70 years after the author’s death. After this period, your rights become the property of your heirs. In short, the Chinese company cannot prohibit the comedian from continuing to use his character, as they have different protections (trademark rights x copyright).
A similar situation happened with the famous animated character Mickey. After 95 years since their debut, Mickey and his eternal girlfriend Minnie Mouse entered the public domain last year in the United States, allowing the creation of narratives and products without prior authorization from Disney studios. However, the public domain only exists in the 1928 version of the mice created by cartoonist Walt Disney. Later versions were duly registered as a trademark by Walt Disney Productions Inc., which gives the company the right to contest misuse, while the characters’ trademark remains under its control.
Read the full article in the propmark February 26, 2024
