(1) Introduction
In Brazil a general Constitutional clause protects human dignity1 (article 1, IV, CRFB)2, just as the Civil Code guarantees the integrity of Law as a shield towards general personality rights (articles 11-21 CC/02) and, in concrete, the right to a name3 (article 16 CC/02)4. These provisions act as a general defense of the existence (a person by itself) and coexistence (society) of human beings.
Notwithstanding, the same Constitution foresees the protection of trademarks as a fundamental right (article 5, XXIX, CRFB)5, that is densified by the Industrial Property Code (Law 9,279/1996, articles 122-175).
Therefore, both names and trademarks are signs protected by Brazilian Law concerning its nature as patrimonial rights (assets), as subject of reputation (both existential and patrimonial) and as a consequence of one's dignity (purely existential).
In this rich context, the Appeal Court of the State of São Paulo6 ruled an interesting case (Plaintiffs: AUTOMOBILI LAMBORGHINI S.P.A., TONINO LAMBORGHINI S.P.A. & TONINO LAMBORGHINI vs. Defendants: FABIO LAMBORGHINI BRASIL LTDA BOTTEGHE D'ITALIA S.R.L) involving naming rights and trademarks in what could be called the LAMBORGHINI versus LAMBORGHINI case.
(2) Summary of The Case
The case was filed by the Plaintiffs that searched for the Trial Court Level Protection against the alleged acts of trademark violation and confusion on the use of the sign LAMBORGHINI. Once served, the Defendants filed a counterclaim alleging the right to one's name on the course of business. The merits decision of the Trial level Court was to dismiss both claim and counterclaim, which resulted on the filing of a motion of appeal by the Plaintiffs that was recently ruled by the Appeal Court Level.
The Plaintiffs/Appellee argued that the case does not concern the civil use of the name Fabio Lamborghini, but the misappropriation of the trademark LAMBORGHINI, well as the name of its founder Ferruccio Lamborghini. This illicit association of the luxury automobile trademark and the constant use of Fabio Lamborghini's uncle's name (Ferrucio Lamborghini) on the wine market, was done without the authorization of the uncles heir. In fact, one of the Defendants (Bothege d'Italia) used to hold a license of the trademark in Italy, but made a partnership with Fabio Lamborghini and continued to sell liquor (and to use it on the real state market) and to make reference to the famous trademark or its contraction LAMBO.
On the other hand, the Defendants argued the right to use Fabio Lamborghini's name, since himself had authorized it, well as the fact that they filed a trademark application that still waits for a decision towards INPI (Brazilian Industrial Property Institute), and that the Plaintiffs were abusing of their rights.
The ruling was in favor of the Plaintiffs, agreeing with a substantial part of the argumentation, and gave emphasis to the fact that they had trademark registrations in Brazil concerning several automobile classes, while the Defendants hold, only, trademark applications pending.
While acknowledging that LAMBORGHINI was a famous trademark, the Appeal Court did not recognize its special protection (Law 9,279/1996, article 125)7 of Very Famous Trademark (all specialties protection), since it was not listed by INPI (and such list is exhaustive). Another argumentation of the Plaintiffs rejected by the Appeal Court was the lack of correspondence of trademark use by the Defendants, since the figurative + nominative trademarks were not that similar; well as one cannot stop others to use a civil name (Fabio Lamborghini) if it was legitimately authorized by such person.
The argumentation of the Plaintiffs that convinced the Appeal Court concerned the attempt to misappropriate the history and prestige of the LAMBORGHINI trademarks to enhance its commercial activities in Brazil. The extensive use of social media mentioning Ferrucio Lamborghini and its famous trademark was illicit, since being a nephew does not mean that the uncle's name can be use without a formal authorization8. Therefore, the Appeal Court Level understood there was unfair competition (including the parasitism venue) and determined that the Defendants should be sanction to pay compensation for such illicit practice.
(3) Final remarks
This interesting case has some factual and legal flaws. The first and most important one is that there has to be a de facto competition for an unfair competition argumentation to be made. Since the Plaintiffs acted, specifically, on the automobile market, while the Defendants act on the liquor and real estate market, there is simply no identity of clientele9 dispute between parties.
A second flaw on the ruling is a consequence of the correct perspective that the LAMBORGHINI trademarks did not receive the special extra-class protection in Brazil. Only those (circa one hundred) trademarks that are on this closed-list from BPTO might argue a protection without the possibility of competition10. In Brazil there is no such thing as Legal protection concerning parasitism without competition11, unless the protection of article 125 of Law 9,279/1996 is available.
A final point that deserves criticism concerns the sanction for parasitic (subtill and repetitive) behavior by the Defendants, while their attitude was more similar to what doctrine would characterize as predatory (ostensive). Nonetheless, the ruling did not specify which were the serial acting that is necessary on a parasite unfair competition behavior. For example, one single illicit act might attract unfair competition sanction, but a parasitic manner demands repetition.
On the other hand, the simple unauthorized use of Ferrucio Lamborghini's name would be enough to render a victory for the Plaintiffs, and the Appeal Court level correctly appointed the illicit use by the Defendants12. Therefore, this specific argumentation from the famous entrepreneur's side would satisfy Brazilian Law standards to impose sanctions to the Defendants.
On a final note, the Brazilian Courts offered a speedy and effective ruling on the Lamborghini vs. Lamborghini Case, and if some of the opinion held were far for being perfect, the argumentation was rich and rendered some good discussions.
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1 BARROSO, Luís Roberto. O controle de constitucionalidade no direito brasileiro: exposição sistemática da doutrina e análise crítica da jurisprudência. 6ª Edição, São Paulo: Saraiva, 2012, p. 81.
2 Constitution of the Federative Republic of Brazil, Article 1. The Federative Republic of Brazil, formed by the indissoluble union of the States, Municipalities, and the Federal District, is a Democratic State governed by the rule of law and has as its foundations: IV- the social values of labour and free enterprise.
3 ALMEIDA JÚNIOR, Vitor de Azevedo. A Disciplina Jurídica do Nome da Pessoa Humana à Luz do DIreito à Identidade Pessoal. Revista Trimestral de Direito Civil, v. 52, Rio de Janeiro: Padma, out./dez., 2012, pp. 203-243.
4 Brazilian Civil Code, Article 16: Every person has the right to a name, including their first name and surname.
5 Constitution of the Federative Republic of Brazil, Article 5. All people are equal before the law, without any distinction whatsoever. Brazilians and foreigners residing in the country are ensured the inviolability of their right to life, liberty, equality, security, and property, under the following terms: […] XXIX – the law shall ensure the inventors of industrial inventions a temporary privilege for their use, in addition to protection of industrial creations, ownership of trademarks, company names and other distinctive signs, taking into account the interest of society and the technological and economic development of the country
6 TJ/SP, 1st Entrepreneur Chamber, Appeal Court Judge J.B. Paula Lima, docket number 1153098-76.2023.8.26.0100, ruled in September 17th 2025.
7 Law nº 9279/1996 – Brazilian Industrial Property Law (BIPL), Article 125: Marks registered in Brazil and considered to be famous will be guaranteed special protection, in all fields of activity.
8 The circumstances in which a mark may be infringed are set out in sections 10(1)-(3). These are where: […] the marks are either identical or similar, the registered trade mark has a reputation in the United Kingdom, and use of the defendant's mark would take unfair advantage of, or be detrimental to, the distinctive character or the reputation of the registered trade mark: section 10(3)/Article 9(1) (c). BENTLY, Lionel; SHERMAN, Brad. Intellectual Property Law. Third Edition, 2009, Oxford, p. 916-917
9 The traditional authors in Brazil defends a rigorous competition venue between Plaintiffs for one to seek unfair competition sanction towards the other: DELMANTO, Celso, Crimes de Concorrência Desleal. São Paulo: Bushatsky, Ed. da Universidade de São Paulo, 1975, p. 22.
10 BARBOSA, Dênis Borges. Proteção das Marcas: uma perspectiva semiológica. Rio de Janeiro: Lumen Juris, 2010, p. 101.
11 BARBOSA, Pedro Marcos Nunes. Curso de Concorrência Desleal. 2ª Edição, Rio de Janeiro: Lumen Juris, 2024, p. 299 e seguintes.
12 […] courts have confined infringement to trade mark uses of the mark because this is taken to be inherent in the notion of using a sign in the course of trade. CORNISH, W; LLEWELYN, D; APLIN, T. Intellectual Property: Patents, Copyrights, Trade Marks and Allied Rights. Seventh Edition. Sweet & Maxwell, London, p.781