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4.1. Trademark

08/24/26

4. INTELLECTUAL PROPERTY

4.1. Trademarks

Signs Eligible for Registration as Trademarks

Under the Brazilian Industrial Property Law (Law No. 9,279/1996 – “BIPL”), visually perceptible distinctive signs used to identify the source of certain goods or services are eligible for registration as trademarks.

Therefore, in Brazil, signs perceptible solely through hearing, smell, taste, or touch cannot be protected as trademarks.

In addition, signs falling within any of the statutory prohibitions set forth in Article 124 of the BIPL cannot be registered as trademarks. These include, among others, signs contrary to morality and accepted standards of conduct; reproductions or imitations of a distinctive element of a third party’s trade name or business name; generic, necessary, common, customary, or merely descriptive signs in relation to the goods or services to be distinguished; signs or expressions used solely as advertising; reproductions or imitations of third-party registered trademarks; etc.

It should be noted that, as of November 28, 2025, when INPI Ordinance No. 15 of June 3, 2025 (“INPI Ordinance No. 15/2025”) came into effect, the Brazilian Patent and Trademark Office (“INPI”) began accepting for trademark registration certain signs that would otherwise initially fall within some of the prohibitions set forth in Article 124 of the BIPL, such as generic or descriptive signs that have acquired distinctiveness through use.

Acquired distinctiveness (secondary meaning) occurs when a sign that lacks inherent distinctiveness becomes capable of identifying the source of goods or services as a result of its continuous and substantial use in the marketplace. As a result, the relevant public comes to recognize the sign as a trademark associated with a specific company.

Recognition of acquired distinctiveness may be requested only once in each proceeding and only at the following stages:

  • Upon filing the trademark application;
  • Within 60 days from publication of the application;
  • When filing an appeal against a refusal based on lack of distinctiveness;
  • When responding to an opposition alleging lack of distinctiveness; or
  • When responding to a cancellation proceeding based on lack of distinctiveness.

The request must be accompanied by documentation demonstrating: (i) substantially continuous use of the trademark during the three-year period preceding the date on which recognition of acquired distinctiveness is requested; and (ii) that a relevant portion of the Brazilian consuming public for the goods or services concerned recognizes the sign covered by the trademark application as a trademark exclusively associated with the applicant, capable of identifying the goods or services associated with the applicant and distinguishing them from identical or similar goods or services originating from other sources.

The procedure for requesting recognition of acquired distinctiveness, as well as the applicable requirements and supporting evidence, is set forth in Articles 84-A through 84-H and Articles 96-A and 96-B of INPI Ordinance No. 08 of January 17, 2022, as amended by INPI Ordinance No. 15 of June 3, 2025.

With respect to the prohibition against registering a sign or expression used solely as advertising, as provided for in Article 124(VII) of the BIPL, the INPI updated its examination guidelines and, as of November 27, 2024, began allowing the registration of expressions that, although also used for advertising purposes, perform a trademark function. One example is “Melhoral, é melhor e não faz mal,” as cited in Section 5.9.4 of the INPI Trademark Manual.

Expressions containing elements capable of simultaneously performing both advertising and trademark functions may also be eligible for registration, such as “I CAN’T BELIEVE IT’S YOGURT,” another example provided in the same section of the Trademark Manual.

Accordingly, the INPI’s approach to the prohibition set forth in Article 124(VII) of the BIPL has become more flexible.

Types of Trademark Registrations

In Brazil, trademarks may be registered in the following forms: (i) word marks (words only); (ii) composite marks (a combination of design elements and words, or stylized lettering); (iii) figurative marks (design elements only); (iv) three-dimensional marks (three-dimensional shapes, such as the shape of a product or its packaging); and (v) position marks.

Position marks are a relatively new category of trademark in Brazil, regulated in September 2021 by INPI Ordinance No. 37/2021 and INPI/CPAPD Technical Note No. 02/2021.

These regulations were subsequently consolidated into INPI Ordinance No. 08 of January 17, 2022, Article 84 of which governs position marks.

Under Article 84, a distinctive arrangement capable of identifying goods or services and distinguishing them from identical, similar, or related goods or services may be registered as a position mark, provided that: (i) it consists of the application of a sign in a unique and specific position on a particular support; and (ii) such application is not dictated by a technical or functional effect.

On May 30, 2023, the first position mark registration in Brazil was granted following the reclassification of Application No. 830621660, originally filed as a figurative mark. The registration protects the specific positioning of the eyelets on the upper front portion of Osklen® sneakers:

                                                                                               

Therefore, a position mark protects a specific distinctive element affixed to a product (the underlying support) in a position that is neither customary nor necessary or functional.

Trademark Applicant

A trademark applicant, whether an individual or a legal entity, Brazilian or foreign, must demonstrate that it lawfully and effectively engages, either directly or through companies under its direct or indirect control, in the business activity related to the goods or services for which trademark protection is sought. This requirement must be declared in the trademark application itself.

Priority Right

Where a trademark to be filed in Brazil has already been applied for in a country that has an agreement with Brazil, or before an international organization, a priority right may be claimed, provided that the deadlines established under the applicable agreement are met.

Under Article 4 of the Paris Convention for the Protection of Industrial Property (“Paris Convention”), to which Brazil is a party, the priority period for trademarks is six months. Accordingly, the trademark owner may claim the filing date of the application filed in the country of origin, and any events occurring during this period—between the original filing and the filing in the country where priority is claimed—will not prevent registration in Brazil.

Priority must be claimed and substantiated in accordance with Article 127 and its paragraphs of the BIPL.

Protection Afforded by Trademark Registration

Trademarks are protected in connection with specific classes of goods and services. Under the principle of specialty, similar and even identical trademarks may coexist when used to identify entirely unrelated goods or services, since trademark protection is generally limited to the scope of the activities covered by the registration.

An exception applies to trademarks with high-renown status, which are afforded special protection across all fields of activity throughout Brazil, pursuant to Article 125 of the BIPL.
Article 125 of the BIPL was regulated by INPI Resolution No. 107/2013, as amended by INPI Resolution No. 172/2016.

These regulations were subsequently consolidated into INPI Ordinance No. 08/2022, recently amended by INPI Ordinance No. 25/2025, which sets forth the parameters for demonstrating that a trademark qualifies for high-renown status in Brazil.

Under Articles 64 and 65 of INPI Ordinance No. 08/2022, for a trademark to be recognized as having high-renown status, its owner must file a petition with the INPI requesting such recognition and demonstrate that the following requirements are met:

I. Recognition of the trademark by a broad segment of the Brazilian public at large;
II. The quality, reputation, and prestige that the Brazilian public at large associates with the trademark and the goods or services identified by it; and
III. The degree of distinctiveness and exclusivity of the trademark in question.

Under paragraphs 1 and 2 of Article 66 of INPI Ordinance No. 08/2022, as amended by INPI Ordinance No. 25/2025, it is recommended that the requirements described in items I and II above be demonstrated through nationwide market surveys.

The parameters applicable to such market surveys will be established by the INPI in its Trademark Manual.

In addition to market surveys, any other evidence admissible under Brazilian law may be submitted, pursuant to paragraph 3 of Article 66 of INPI Ordinance No. 08/2022, as amended by INPI Ordinance No. 25/2025.

INPI Ordinance No. 68/2026 amended Ordinance No. 08/2022 to allow an application for high-renown status to identify more than one trademark registration containing the relevant sign. The application may be filed with the INPI at any time while the respective registrations remain in force.

Recognition of high-renown status is valid for ten (10) years. During the final year of this period, the trademark owner may submit a new application to the INPI, together with updated evidence demonstrating that the requirements described above continue to be met.

A well-known trademark is also afforded special protection, but only within its field of activity and regardless of whether it has previously been filed or registered in Brazil, pursuant to Article 126 of the BIPL and Article 6bis(1) of the Paris Convention.

Brazil follows a first-to-file trademark system, meaning that ownership of a trademark and the exclusive right to use it throughout Brazil are generally acquired only through a valid registration issued by the Brazilian Patent and Trademark Office (INPI). An applicant with a pending trademark application has only an expectation of rights; however, the application enjoys priority over subsequently filed applications, since the INPI considers filing precedence in its examination.

The BIPL nevertheless provides for prior-user rights under Article 129, paragraph 1. Accordingly, a person who, in good faith, had been using an identical or similar trademark in Brazil for at least six months prior to the priority or filing date of a third party’s application to identify identical or related goods or services may assert its prior right of use.

Trademark registrations in Brazil are valid for ten (10) years from the date of registration and may be renewed indefinitely for successive ten-year periods.

Under Article 130(I), (II), and (III) of the BIPL, both trademark owners and applicants are entitled to: (i) assign their registration or application; (ii) license the use of the trademark; and (iii) protect the trademark’s material integrity and reputation.

Expedited Trademark Examination

Since August 7, 2025, the INPI has offered an expedited trademark examination procedure, intended to accelerate the examination of trademark applications and trademark-related petitions filed by applicants that meet certain eligibility criteria.

The circumstances in which expedited examination may currently be requested are set forth in Articles 84-I(I) and (II) and 84-J of INPI Ordinance No. 08/2022, as amended by INPI Ordinances Nos. 27/2025 and 56/2026, as well as INPI Ordinance No. 66/2026.

Under these administrative rules, expedited trademark examination may be requested by:

  1. Individuals aged 60 or older;
  2. Applicants with serious illnesses;
  3. Persons with disabilities;
  4. Companies qualifying under the Inova Simples regime;
  5. Parties that have filed an opposition based on prior-user rights under Article 129, paragraph 1, of the BIPL;
  6. Applicants that require the registration in order to obtain public funding;
  7. Applicants that are parties to court proceedings involving the trademark;
  8. Applicants whose goods or services are associated with a patent undergoing expedited examination;
  9. Scientific, Technological, and Innovation Institutions (ICTs);
  10. Participants in INPI mentoring programs conducted under Technical Cooperation Agreements (ACTs);
  11. Cases involving public interest or a national emergency;
  12. Applicants for trademarks related to official events of the Brazilian Federal Government;
  13. Applicants that require trademark registration to operate on digital sales platforms or to stop infringements occurring on such platforms;
  14. Individuals or groups belonging to traditional peoples and communities or family farming;
  15. Startups;
  16. Owners of basic applications linked to international registrations under the Madrid Protocol when Brazil acts as the Office of Origin; and
  17. Applicants domiciled in, or with applications filed in, countries with which Brazil maintains a reciprocal expedited examination agreement (TPH).

The circumstances listed in items (i) through (iv) above qualify for statutory priority and are exempt from official fees. Those listed in items (v) through (xvii) are considered strategic or public-policy priorities and may be requested upon payment of the applicable official fee, subject to the requirements established by the INPI.

A request for expedited examination must be submitted using the appropriate form, together with supporting documentation and, where applicable, payment of the relevant official fee.

Use Requirement for Registered Trademarks

The mere grant of a trademark registration does not necessarily guarantee permanent and unassailable rights, even where the registration was granted without any defect that could render it invalid.

A trademark owner in Brazil has five years from the date of registration to commence use of the trademark. After this period, the registration becomes vulnerable to administrative cancellation proceedings for non-use.

In such proceedings, the owner must demonstrate use of the trademark or provide legitimate reasons for non-use in order to maintain the registration. Importantly, the trademark must be used substantially as registered.

Even if use begins within the period mentioned above, a registration may become vulnerable to cancellation if use is subsequently interrupted for five consecutive years.

Non-use cancellation proceedings may be initiated by a third party with a legitimate interest. However, for proceedings filed between August 1, 2023 and September 30, 2024, verification of legitimate interest is waived where the trademark owner does not challenge it, pursuant to INPI Ordinance No. 48/2026.

According to INPI Permanent Committee for Improvement of Examination Procedures and Guidelines (CPAPD) Technical Note No. 03/2022, published on December 19, 2022, a large volume of evidence of use is not required. Rather, evidence of a minimum level of use is sufficient, taking into account the relevant goods or services and market.

Effective use of the trademark may be demonstrated by either the trademark owner or a licensee in order to prevent cancellation for non-use.

According to the same Technical Note, the trademark owner is not required to demonstrate use or justify non-use during the first five years following registration. Accordingly, even if this period falls within the five-year period under investigation, calculated retrospectively from the date on which cancellation for non-use is requested, the owner is only required to demonstrate use or justify non-use for the period between the end of the first five years following registration and the end of the relevant investigation period.

It is therefore advisable to wait at least one month after the fifth anniversary of a trademark registration before filing a request for cancellation based on non-use. In that case, the trademark owner will be required to demonstrate use or justify non-use only for the period following the initial five-year period.

For jointly owned trademark registrations, evidence of use by only one of the co-owners is sufficient to prevent cancellation for non-use.

Madrid Protocol

Brazil became a party to the Madrid Protocol concerning the international registration of trademarks on October 2, 2019. Following Brazil’s accession to the Protocol, Brazilian applicants became able to seek trademark protection abroad through a single international application designating the Madrid Protocol member countries in which protection is sought. Likewise, foreign applicants gained an additional route for seeking trademark protection in Brazil.

INPI Resolution No. 247/2019 governs trademark registration under the Madrid Protocol.

Brazil’s accession to the Madrid Protocol created the need to harmonize procedures applicable to national trademark applications and international designations received under the Madrid System. As a result, Brazil introduced mechanisms for joint ownership of trademarks and multiclass registration, as discussed below.

Joint Ownership of Trademarks

INPI Resolution No. 245/2019, as amended by Resolution No. 256/2020, governs the joint ownership of trademarks. Since September 15, 2020, more than one owner or applicant may be recorded for a trademark registration or application.

Multiclass System

INPI Resolution No. 248/2019, as amended by Resolution No. 257/2020, provides for multiclass trademark registration, i.e., the possibility of claiming more than one class of goods and/or services in a single trademark application.

At present, multiclass trademark applications are not yet available through Brazil’s national filing system, as an INPI regulation establishing the effective implementation date is still pending, pursuant to Article 1 of Resolution No. 257/2020.

Division of Trademark Registrations and Applications

As a consequence of the future availability of multiclass trademark applications through Brazil’s national filing system, the division of trademark registrations and applications is also expected to become available, as provided for in INPI Resolution No. 244/2019, as amended by INPI Ordinance No. 35/2021.

Under that Ordinance, which entered into force on July 1, 2021, the date on which petitions for the division of trademark registrations and applications will become available through the Electronic Industrial Property Management System (e-INPI) will be established by a separate INPI regulation.

Trademark License Agreements

A trademark license agreement may be entered into by either the owner of a trademark registration or the applicant for a trademark registration, and may grant the licensee full authority to act in defense of the trademark. The license must be recorded with the INPI in order to be effective against third parties. It is important to note, however, that under the BIPL, recordal of the license agreement with the INPI is not required for purposes of establishing evidence of trademark use.

Crimes Against Trademarks

In Brazil, trademarks are protected not only through civil remedies but also under criminal law. Trademark infringement may subject offenders to imprisonment ranging from one (1) month to one (1) year, as provided for in Articles 189 and 190 of the BIPL.

The following acts constitute criminal offenses subject to the penalties prescribed by the BIPL:

  • Reproducing, without the owner’s authorization, all or part of a registered trademark, or imitating it in a manner likely to cause confusion;
  • Altering a third party’s registered trademark already affixed to a product placed on the market; and
  • Importing, exporting, selling, offering or displaying for sale, concealing, or keeping in stock: (i) a product bearing a third party’s trademark that has been unlawfully reproduced or imitated, in whole or in part; or (ii) a product manufactured or sold by the offender that is contained in a container, receptacle, or packaging bearing another party’s legitimate trademark.

Geographical Indications

The Brazilian Industrial Property Law also provides protection for geographical indications, which comprise indications of source and appellations of origin.

An indication of source is the geographical name of a place that has become known as a center for the extraction, manufacture, or production of a particular product, or for the provision of a particular service.

An appellation of origin, in turn, is a geographical name associated with the extraction, manufacture, or production of a particular product, or the provision of a particular service, where the natural and human factors of that location influence the quality or characteristics of the relevant product or service.

Authors: Ana Carolina Lee Barbosa and Marina Inês Fuzita Karakanian
Dannemann, Siemsen, Bigler & Ipanema Moreira

Rua Rodolfo Amoedo, 300 – Barra da Tijuca
22620-350 Rio de Janeiro- RJ
Phone.: (21) 2237 8700
Fax: (21) 2237 8922
E-mail: [email protected]

Av. Brigadeiro Faria Lima, 4221 – Itaim Bibi
04538-133 São Paulo – SP
Phone: (11) 2155 9500
Fax: (11) 5549 2300
E-mail: [email protected]

Internet: www.dannemann.com.br

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