acts of appropriation10, acts of disruption and acts of parasitic competition11. In their current version, Articles 313 and 315 of the CPI also establish the violation of trade secrets as an autonomous category of administrative offense, which legal doctrine had traditionally included in the previous categories, within the open clause of unfair competition12. We will not dwell on the analysis of these categories. We will merely point out that unfair competition presupposes a competitor’s breach of an obligation to behave positively or negatively towards economic agents who are competing with them for customers. It is therefore a breach of a specific duty of certain agents. As Couto Gonçalves points out, “the act of competition, beyond the competitive relationship, presupposes a relational act in the market and a competitive purpose”13. This means that the mechanism of unfair competition only binds economic agents when they act in the market, in relation to acts that may affect their competitive relationship with other economic agents (their competitors) and/or with consumers. We can conclude that unfair competition represents a legal institution for the repression of certain acts that offend the values of fair competition to which economic agents wishing to operate in the open market are bound. In other words, acts committed by competing economic agents that offend the freedom of economic activity, the plurality of economic agents, and/or the freedom of choice of consumers. 10 Acts of appropriation were essentially acts of competition in which the economic agent appropriates elements, qualities, or characteristics that do not belong to them. Carlos Olavo further clarifies that this type of action refers to “the invocation, as their own, of qualities or characteristics that either do not exist or belong to a third party, whether a competitor or not.” [OLAVO, Propriedade Industrial - Volume I, p. 278 a 281.]. Couto Gonçalves distinguished here between “acts of exploitation” and “deceptive acts.” [GONÇALVES, Manual de Direito Industrial, p. 419 a 421.]. 11 Parasitic competition refers to acts involving the use of a distinctive sign belonging to another business, or one that could be confused with it, but applicable to products or services other than those for which the legitimate sign is intended (thus apparently not violating the principle of specialty to which the protection conferred by registered rights is confined, and therefore not constituting a violation of a private right). In this case, we are not so much dealing with an act that actually or potentially unfairly harms a competitor, but rather with an exploitation contrary to good faith and “honest use” of the prestige of an industrial property title that one does not own. Carlos Olavo defined parasitic competition in broader terms as “the acts of an entrepreneur who takes or attempts to take advantage of the reputation legitimately acquired by a third party or the personal achievements of others.” [OLAVO, Propriedade Industrial - Volume I, p. 283 a 291.]. Couto Gonçalves classified acts of “parasitic competition” within a broader category of “atypical unfair acts,” characterizing it as “the actions of a competitor who systematically, continuously, closely, and essentially follows the business initiatives and ideas of another competitor, even if this does not cause confusion.” [GONÇALVES, Manual de Direito Industrial, p. 421.]. 12 Before its express legal enshrinement, Couto Gonçalves included “breach of trade secrets” within acts of disorganization. [GONÇALVES, Luís Couto, Manual de Direito Industrial, 3.a Edição. [s.l.]: Almedina, 2005, p. 376–379.]. 13 GONÇALVES, Manual de Direito Industrial, p. 410. 572 PEDRO DIAS VENÂNCIO
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