The Brazilian Patent and Trademark Office (INPI) has announced its intention to accept the registration of trademarks with acquired distinctiveness (secondary meaning), aligning with international agreements. For this, INPI established some rules for trademark owners to demonstrate the acquired distinctiveness of their sign, requiring formalities such as the continuous use of the mark for five years and recognition by consumers.
Trademark owners interested in the process must file the supporting documents within 60 days from the filing of the application, upon appeal, or within 60 days after the filing of the appeal. The INPI clarified that acquired distinctiveness is not equivalent to the declaration of notoriety of a sign and that some signs remain unregistrable. Furthermore, in some cases, even if a trademark holder obtains the registration of its trademark because of acquired distinctiveness, third parties may not be prevented from using the term in its common meaning.
This change follows court rulings that have acknowledged the secondary meaning of certain signs. The changes are expected to come into force in 2025, which will represent a significant advance in Brazilian trademark law.
