For decades, trademark litigation in Brazil faced a cultural barrier, as it was often perceived by the courts and the public as a strictly patrimonial dispute between large corporations and economically vulnerable sellers. This perception has been definitively undermined by the rapid expansion of illicit markets into highly regulated sectors, such as medicines, beverages, agricultural pesticides and dermocosmetics, where counterfeiting takes on the unmistakable contours of a public health tragedy.
The clandestine circulation of adulterated weight-loss pens containing tirzepatide and semaglutide, ineffective oncology drugs and spirits deliberately contaminated with methanol not only expose consumers to a concrete risk of death, but also contaminates the principal intangible asset of legitimate companies: market confidence in the safety and provenance associated with their trademarks.
The public health dimension of this problem is no longer merely potential. The 2025 crisis involving adulterated alcoholic beverages, which was associated with 76 cases of methanol poisoning and 25 deaths, illustrates how counterfeiting may extend beyond the realm of property rights and turn the unauthorized appropriation of a trademark into a vector of risk to consumers’ lives and health.
In highly regulated sectors, this function takes on an additional dimension: a trademark does not merely identify the commercial source of a product, but also embodies legitimate expectations of authenticity, quality and safety. By appropriating that sign, counterfeiters transfer to the legitimate rights holder the reputational consequences of a supply chain over which it has no control, making trademark protection a relevant component of risk prevention itself.
From the perspective of intellectual property practice and strategic litigation, this new reality requires a profound reassessment of the parameters governing enforcement. First, the traditional approach to the assessment of damages must be revisited. When bringing injunctive and damages actions against clandestine manufacturing networks, the determination of compensation (Articles 208 to 210 of Law No. 9,279/1996) can no longer remain tied exclusively to conventional lost profits. Trademark owners have legal and legitimate grounds to pursue compensation reflecting corporate moral damages and the indirect harm to public health, given the extraordinary costs they incur in emergency assistance, toxicological testing, field investigations and public recall campaigns aimed at mitigating risks posed by counterfeit products that are often virtually impossible to trace.
The assessment of damages should also account for the evidentiary dimension of the harm. Demonstrating the illicit origin and repeated nature of the conduct, as well as the improper association between the counterfeit product and the legitimate trademark, may be decisive not only to stop the circulation of the goods, but also to properly assess the losses suffered by the rights holder. In highly regulated markets, trademark protection must therefore operate in coordination with traceability and enforcement mechanisms.
At the same time, civil enforcement must reach the informal channels through which counterfeit products are distributed. The proliferation of sales of products subject to strict sanitary controls through digital platforms, messaging applications and decentralized delivery networks requires the extension of liability to those who negligently disregard basic duties concerning the custody and provenance of goods. Improper handling and repeated breaks in the cold chain during the transportation of pharmaceuticals compromise the integrity of the products, constituting not only an infringement of consumer rights, but also an independent form of unfair and parasitic competition by those who exploit the credibility of legitimate businesses without bearing the costs of strict regulatory compliance.
Finally, strategic litigation requires an active challenge to the generalized assumption that consumers are necessarily vulnerable victims. Empirical evidence indicates that significant segments of demand deliberately resort to parallel channels because of price advantages, knowingly accepting the possibility of purchasing adulterated products. When directing legal measures against intermediaries and points of sale handling goods at prices incompatible with regulatory compliance costs, rights holders should therefore challenge automatic presumptions of subjective good faith and demonstrate the eventual intent of actors who turn industrial property infringement into a source of irreversible harm.
Accordingly, intellectual property protection in public health-related sectors has become an indispensable tool of collective health surveillance, in which a rigorous enforcement response serves as a critical safeguard against the systemic degradation of fair competition and the legitimate market.
