Higher Penalties, More Effective Protection?
Brazil’s General Sports Law introduced tougher criminal penalties for sports-related counterfeiting. Three years later, case law remains limited, while the illicit market continues to expand through physical and digital channels.
Major sporting events do more than attract audiences, fuel passion, and spark debates about national teams’ performances. They also bring global attention to disputes involving trademarks, sponsorships, commercial rights, technology, and the appropriation of economic value.
The 2026 FIFA World Cup has already provided some notable examples.
To comply with FIFA’s commercial restrictions, Levi’s brand name was covered at the stadium in Santa Clara. However, the covering left the familiar batwing silhouette visible, a distinctive visual element immediately associated with the brand. The incident attracted attention and prompted discussions about the boundaries between compliance with the rules of a commercially controlled environment and a potential ambush marketing strategy.
During the quarterfinal match between Norway and England, another controversy placed technology and evidence at the center of the tournament. The Norwegian delegation argued that the ball had struck the cable of the aerial camera, known as the spidercam, before the play that led to England’s goal. FIFA responded that the sensor embedded in the ball had detected neither contact nor any abnormal change in its trajectory.
For intellectual property and criminal law practitioners, however, the World Cup also raises another question: How effective is the criminal protection established by Brazil’s General Sports Law in practice?
Enacted in 2023, Law No. 14,597 introduced four criminal offenses under the section addressing crimes against the intellectual property of sports organizations. Articles 168 through 171 cover the unauthorized use of official symbols, the sale of counterfeit products, and ambush marketing through association or intrusion.
The 2026 World Cup is the first edition of the men’s tournament held since this new legal framework entered into force. It therefore provides an opportunity to examine not only the scope of these offenses but also their actual ability to deliver meaningful protection.
Among these provisions, Article 169 is particularly noteworthy:
Article 169. Importing, exporting, selling, distributing, offering or displaying for sale, concealing, or keeping in stock any distinctive signs, emblems, trademarks, logos, mascots, mottos, anthems, or any other symbols owned by a sports organization, or products resulting from their unauthorized reproduction, imitation, counterfeiting, or modification for commercial or advertising purposes:Penalty: Imprisonment for two to four years and a fine.
At first glance, this provision may appear to merely replicate conduct already addressed under Brazil’s Industrial Property Law.
Article 190 of Law No. 9,279/1996 criminalizes the importation, exportation, sale, offering for sale, display for sale, concealment, or storage of products bearing unlawfully reproduced or imitated trademarks. Under that provision, however, the prescribed penalty is imprisonment for one to three months or a fine.
The similarities in the wording of these provisions are evident. Their legal consequences are not.
Beyond the substantial difference in penalties, the two offenses are subject to different criminal prosecution regimes. As a general rule, trademark offenses under the Industrial Property Law require a private criminal prosecution initiated by the rights holder. By contrast, offenses under Article 169 of the General Sports Law are subject to unconditional public prosecution, meaning that the Public Prosecutor’s Office may pursue charges without a complaint from the rights holder.
This apparent overlap has begun to receive judicial scrutiny.
In reviewing decisions issued by the São Paulo State Court of Appeals, I identified one precedent directly addressing this issue.
In that case, a retailer was found in possession of thousands of counterfeit clothing items, some bearing the symbols of Palmeiras and Paris Saint-Germain. The defense argued that the conduct should be reclassified under Article 190 of the Industrial Property Law.
Because prosecution of that offense depends on action by the rights holder, the defense also argued that the statutory deadline for initiating proceedings had expired.
The Court’s 15th Criminal Chamber rejected both arguments. It held that Article 169 of the General Sports Law constitutes a specific provision in relation to Article 190 of the Industrial Property Law when counterfeit products bear symbols owned by sports organizations. Accordingly, the Court applied the principle of lex specialis, under which the more specific legal provision prevails over the general one.
(São Paulo State Court of Appeals, Criminal Appeal No. 1536080-30.2023.8.26.0050, 15th Criminal Chamber, Reporting Judge Érika Soares de Azevedo Mascarenhas, November 21, 2025.)
The Court’s conclusion may be supported by the structure of the offenses themselves. Article 169 contains specific elements relating to the sporting nature of the protected signs and their owners. That distinction, however, does not settle the broader debate.
Applying the more specific provision means that conduct which is materially very similar may result in radically different criminal consequences.
A retailer who keeps counterfeit soccer jerseys in stock may face charges carrying a prison sentence of two to four years, prosecuted by the state regardless of whether the rights holder files a complaint. If the same retailer stocks counterfeit handbags bearing a fashion brand’s trademark, the conduct may fall under an offense punishable by one to three months of imprisonment and, as a general rule, subject to prosecution initiated by the rights holder.
The formal legal distinction exists. What remains to be examined is the criminal policy rationale behind such different treatment and whether it is consistent with the principles of proportionality and coherence within the criminal justice system.
Why should selling a counterfeit sports-related symbol trigger a substantially harsher criminal response than selling products bearing other counterfeit trademarks, which also represent investments, reputation, innovation, jobs, revenue, and market position? Are the legal interests protected by these provisions fundamentally different?
This question does not necessarily lead to the conclusion that the protection afforded to sports organizations is excessive or that their rights are more important. Conversely, it may suggest that the criminal protection available to other trademarks is insufficient.
What seems difficult to justify is such a significant disparity without a more thorough examination of its underlying rationale and practical consequences.
The limited body of publicly available case law applying Article 169 is also noteworthy.
Nearly three years after the General Sports Law entered into force, and during a period of particularly high commercial exposure for the sports industry, I found only one precedent directly addressing the conflict between Article 169 of the General Sports Law and Article 190 of the Industrial Property Law in the São Paulo State Court decisions reviewed.
The scarcity of decisions does not, in itself, establish that investigations, police operations, pending proceedings, or rulings in other jurisdictions do not exist. It does, however, indicate that the more stringent criminal provision introduced to combat sports-related counterfeiting still has a limited presence in the publicly available case law examined.
This legal picture contrasts sharply with the economic scale of the illicit market.
A study released by the Brazilian Association of the Sports Industry and Commerce (Associação pela Indústria e Comércio Esportivo — ÁPICE), conducted in partnership with the Institute for Industrial Studies and Marketing (Instituto de Estudos e Marketing Industrial — IEMI), estimated that more than 225 million units of counterfeit sporting goods were consumed in Brazil in 2025.
That figure represents approximately 34% of all sporting goods consumed in the country and a 30% increase compared with 2023, when approximately 173.4 million counterfeit units were recorded.
The study also estimated potential losses of BRL 31.8 billion for the legitimate market, BRL 7.4 billion in foregone tax revenue, and more than 60,000 direct formal jobs that could otherwise have been created.
An important qualification is necessary.
The study attributes the growth of counterfeiting to several factors, including the sporting calendar, the approaching World Cup, easier access to counterfeit products, and the accelerated shift toward digital sales channels.
It would therefore be inappropriate to establish a direct causal relationship between the enactment of the General Sports Law and the growth of the illicit market.
Nevertheless, the data show that the introduction of a new criminal offense and an increase in penalties have not, on their own, produced a discernible impact on the scale of that market during the period in which both have coexisted.
This is the central issue.
Brazilian criminal law frequently relies on harsher penalties and the creation of new offenses as an immediate response to complex economic and social problems. The criminal provisions of the General Sports Law do not entirely depart from this approach.
Criminalizing certain conduct and increasing the applicable penalties may be legitimate legislative choices. They are not, however, substitutes for investigative capacity, proper legal classification, evidence gathering, intelligence concerning distribution channels, and coordination among the parties responsible for protecting intellectual property rights.
In the context of sports-related counterfeiting, effective enforcement depends on a framework that brings together sports organizations, trademark owners, licensees, digital platforms, law enforcement authorities, and public prosecutors.
For companies and organizations that own these assets, this means that protection cannot begin only when a shipment is seized or counterfeit products have already entered widespread circulation.
It requires continuous monitoring of physical and digital distribution channels, preservation of evidence, identification of supply chains, removal of infringing content and advertisements, action against repeat offenders, and coordination across civil, administrative, and criminal enforcement mechanisms.
The penalty established under Article 169 is considerably more severe than the traditional criminal sanctions provided under the Industrial Property Law. Its existence, however, does not guarantee that the provision will be consistently applied or that it will deliver effective protection.
Without investigations, evidence, adequate training for enforcement authorities, and a coordinated enforcement strategy, the severity intended by lawmakers remains largely confined to the statutory text, while the economic value of trademarks, sports organizations, and their licensees continues to be exploited in the illicit market.
Caio C. Franco Lima
Brazilian Attorney — OAB/SP 386.222
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