The lawsuit initiated by the Argentine Pablo Silva and his Brazilian partner Heine Allemagne, inventors of the spray, has been going on for 4 years. Lawyer Cristiano Zanin Martins takes the case forward and spoke exclusively with Olé: "In Brazil, infringing the patent law is a criminal offence."
In these modern times where the use of VAR and technology in games is discussed, it should not be forgotten that the aerosol was the element that got into the field and broke a paradigm in soccer. Pablo Silva was the great promoter (9.15 was the commercial brand), he formed a partnership with the Brazilian Heine Allemagne and since 2013, after receiving the approval of the International Board, the spray is part of the rules of the game.
Despite the fact that Brazil 2014 was the great World Cup debut of the spray, the death of Julio Grondona, the departure of Joseph Blatter from FIFA and the arrival of Gianni Infantino were a fatal combination. "FIFA ignores us. They never answered us again (the initial agreement was 40 million dollars)", Silva explained. In this way, in 2017 a judicial case was initiated in Rio de Janeiro against FIFA and the first instance decision is imminent. Could Infantino be arrested? Would FIFA's assets and accounts be seized? Cristiano Zanin Martins, lawyer for the former president of Brazil, Lula da Silva, is the one who is pursuing the lawsuit and spoke exclusively with Olé to give more details.
- In the first place I want to clarify that I am the lawyer of SPUNI, of which Heine Allemagne is one of the partners (together with Pablo Silva). This company owns the patents of the aerosols for the marking of the “wall” in soccer and various negotiations took place with FIFA for several years. In the end, the entity agreed to receive the SPUNI sprays for the 2014 World Cup and it was a definitive test on the use of the product. But all the expectations they showed to acquire the patent and the payment of royalties ended in great frustration.
- Why does FIFA continue to use the product in the tournaments it organizes?
- There has been a legal action by SPUNI against FIFA since 2017 seeking compliance with that pre-contract for the acquisition of product patents. The case is in a Court of Rio de Janeiro. Despite the fact that a Brazilian judge recognized SPUNI's patent in 44 countries and prohibited FIFA from using the spray (NR: according to that preliminary ruling, for each match in which the spray was used since 2017 there is a fine of $15,000), they did not respect that ruling and used it in the 2018 World Cup in Russia. In addition, a separate preliminary decision of the Superior Court of Brazil allowed the use of a spray during the U-17 World Cup, which took place at the end of last year in Brazil, when FIFA could have purchased a product from the market.
- Were they able to communicate with Infantino at that time?
- Infantino was in Brazil watching the final and we sent him a notification requesting to clarify which product was used in this world sporting event and how it was imported to be used in Brazil. Although he received this notification at a hotel in Brasilia, he declined to provide any explanation in that regard. This information should been clarified according to the transparency that FIFA had recently promised in the commitments signed with authorities. However, they were not given. Because of that, in March of this year we asked the FIFA Ethics Committee to open an investigation and that procedure is also pending. They are two parallel actions.
- How is the cause continuing in Brazil?
- SPUNI already has a right recognized by the Brazilian state. Here, patent infringement can be tried as a criminal offence and can have criminal, civil and administrative consequences, with sentences of one to four years in prison. Once the patent infringement and other acts are verified, this will have serious consequences for FIFA and its leaders. This legal action is based on the damages that FIFA caused to SPUNI after having entered into agreements that were not fulfilled and for infringing patents and related rights.
- Could Infantino go to jail and FIFA’s assets be seized?
- This action seeks to seize FIFA’s assets and accounts since there is compensation that will have to be calculated according to all the damages that were caused to SPUNI over time. In addition, they must compensate the company for the damages it caused. With regard to Infantino, it is difficult to answer that question. What I can say is that in Brazil it is a crime to violate a patent and all those who participated in this violation are subject to receiving a criminal sentence and could even be arrested.
- Do you think that the ruling of the Justice will be in favor of SPUNI?
- In the next few days the first instance ruling will come out. With all the colleagues of the legal team we have a quite positive endorsement of the rights of SPUNI and we understand that the arguments that were presented have a lot of legal force. We hope to receive a favorable decision for the company so that we can continue to put pressure on FIFA.
Source: Ole
