Trademark Litigation 2018: Litigation procedures and strategies in Brazil
Legislative framework and causes of action
The Brazilian Constitution guarantees patent, trademark and copyrights as a means to secure the social and economic development of the country. Nevertheless, the use and registration of trademarks in Brazil are mainly regulated by the Industrial Property Act (Law 9.279/1996), which was enacted shortly after the ratification by Brazil of the Agreement on Trade-Related Aspects of Intellectual Property Rights. Brazil is also a signatory to the Paris Convention for the Protection of Industrial Property.
Brazil adopts the first-to-file principle, whereby the registration of a trademark will be granted to the first person who files the application. Therefore, the exclusive use of a trademark is acquired by means of a registration validly issued by the Brazilian Patent and Trademark Office (BPTO). There is no need to submit evidence of use, but third parties may request a declaration of forfeiture for non-use if, on the date of the request, use of the trademark in the country was not initiated or was interrupted for more than five consecutive years after registration, or was used in a modified form that implies alteration to its original distinctive character.
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