Brazil Trademark Reform 2025 in Global Context

Index

• 1. Executive Summary
• 2. Legal and Regulatory Basis
• 3. Acquired Distinctiveness in Brazil (2025)
• 4. Global AD Framework & Comparison (Graph 1)
• 5. Opposition Systems & Brazil’s 3022 Mechanism (Graph 2)
• 6. Brazil – Probability of AD Recognition (Graph 3)
• 7. Strategic Implications for Foreign Clients
• 8. Sector-Specific Notes (Pharma, Tech, Retail)
• 9. Multilingual Notes (PT-BR & ZH-CN)
• 10. Sources & References

1. Executive Summary

On 28 November 2025, the Brazilian Patent and Trademark Office (INPI) released a new update to its Manual de Marcas, simultaneously implementing Portaria INPI/PR nº 15/2025 (Acquired Distinctiveness) and Portaria INPI/PR nº 36/2025 (Restricted Opposition – service code 3022).

For the first time, Brazil now has:

• A structured, evidence-based framework for Acquired Distinctiveness (AD), also known as secondary meaning;
• A simplified Restricted Opposition mechanism limited to conflicts under Art. 124(XIX) of the LPI;
• Closer convergence with the practices of EUIPO, USPTO and CNIPA.

2. Legal and Regulatory Basis

The reform is anchored in the existing Brazilian Industrial Property Law and is operationalized through updated administrative instruments:

• LPI – Law No. 9.279/1996 (Lei da Propriedade Industrial);
• Manual de Marcas, updated on 28 November 2025, with a dedicated “Atualizações” section;
• Portaria INPI/PR nº 15/2025 – formally defines Distinctiveness and Acquired Distinctiveness, and how AD must be requested;
• Portaria INPI/PR nº 36/2025 – creates service code 3022: “Oposição com restrição de alegações, limitadas à proteção de marca registrada de terceiro (Art. 124, XIX, da LPI)”;
• Public Consultation held between 29 October 2024 and 29 January 2025, where stakeholders contributed to the final model.

These instruments are integrated into INPI’s 2025 Action Plan and linked to strategic projects P1.15 – Oposição 2.0 para Marcas and P1.08 – Distintividade Adquirida e Marcas Não Tradicionais.

3. Acquired Distinctiveness in Brazil (2025)

Before 2025, Brazil acknowledged the concept that a descriptive or weak sign could become distinctive through use, but there was no clear, standardized procedural route. The new rules change that, offering a structured pathway with defined evidentiary expectations.

3.1 Definition and Scope

Under Portaria 15/2025 and the updated Manual, Acquired Distinctiveness (distintividade adquirida) is:

“The situation where a sign which, originally, would not have been registrable for lack of inherent distinctiveness, has become capable of distinguishing the applicant’s goods or services as a result of the use made of it in commerce.”

AD is not intended to “rescue” every descriptive term, but to recognize exceptional cases where the market effectively associates a sign with a single commercial origin.

3.2 Evidence Required

To request the analysis of Acquired Distinctiveness, applicants must follow specific procedures and attach robust evidence, which may include:

• Duration and intensity of use of the mark in Brazil (years of continuous use, sales volumes, market share);
• Consumer surveys with statistically valid methodologies, showing that the relevant public recognizes the sign as a source identifier;
• Advertising and marketing investment, including channels and geographic coverage;
• Geographical scope of use (preferably national, or at least wide regional coverage);
• Press, media coverage and industry recognition (articles, awards, rankings, certifications);
• Evidence of exclusive association, demonstrating that the sign points to a single undertaking in the relevant market.

The overall burden is substantial: Brazil positions AD as a high standard, closer to EU expectations than to a purely formal declaration of long-term use.

4. Global AD Framework & Comparison

Comparing Brazil’s new rules with other major offices helps foreign practitioners calibrate their expectations. In practice, all the main systems treat Acquired Distinctiveness as an exception, but with different levels of burden:

• EUIPO: EUTMR Art. 7(3) and EU case law impose a very high evidentiary standard, often requiring evidence across multiple EU countries.
• USPTO: under Lanham Act §2(f) and the TMEP, 5 years of substantially exclusive use may create a presumption of acquired distinctiveness, though not an automatic guarantee.
• CNIPA: Chinese practice is cautious; AD is recognized in theory but rarely granted in practice, especially for foreign applicants in sensitive markets.
• Brazil (2025): aligns itself with a high, structured standard, using evidence similar to EUIPO but with its own procedural rules at INPI.

5. Opposition Systems & Brazil’s 3022 Mechanism

Portaria INPI/PR nº 36/2025 introduces service code 3022 for “Oposição com restrição de alegações, limitadas à proteção de marca registrada de terceiro (Art. 124, XIX, da LPI)”. This creates a streamlined opposition format focused exclusively on conflicts with prior registered marks.

In comparative terms:

• USPTO TTAB: full adversarial proceedings, with discovery and potentially long timelines (often 1–3 years);
• EUIPO: administrative oppositions with defined stages and written arguments, usually resolved in 6–12 months;
• CNIPA: relatively brisk administrative opposition procedures, less evidence-heavy than TTAB;
• Brazil 3022: a restricted, lower-cost, faster tool, limited to Article 124(XIX) conflicts (likelihood of confusion with a prior registration).

For portfolios with dozens or hundreds of marks in Brazil, 3022 can be used as a first-line enforcement mechanism, especially when combined with AI-based watch and conflict detection systems.

6. Brazil – Probability of AD Recognition

Although the procedure is now clarified, Acquired Distinctiveness remains an exceptional route. The conceptual curve below illustrates, qualitatively, how the likelihood of success grows as the evidence package becomes stronger and more comprehensive.

7. Strategic Implications for Foreign Clients

7.1 For Foreign IP Firms

• Update Brazil country sheets and internal alerts to reflect the new AD and 3022 procedures;
• Prepare standardized AD evidence kits (sales, surveys, advertising) that can be adapted to Brazil;
• Integrate Brazil into trademark watch services and automate 3022 oppositions via AI-based conflict radar tools.

7.2 For Multinational Brand Owners

• Reassess borderline descriptive marks: some may now have a viable AD strategy in Brazil;
• Use 3022 as a first-line enforcement to block confusing applications quickly and cost-effectively;
• Align Brazil’s AD strategy with EU and US practice, reusing evidence across multiple jurisdictions where appropriate.

8. Sector-Specific Notes

8.1 Pharmaceutical & Life Sciences

In pharma, where nonproprietary names (INNs) and highly descriptive terms are common, AD may offer an additional layer of protection for brands that have built significant recognition in Brazil. At the same time, Restricted Opposition becomes a useful tool to react quickly against confusing later marks filed for overlapping therapeutic classes.

8.2 Technology, Software & AI

Technology and AI companies often adopt semi-descriptive names and slogans. The new AD framework allows, in principle, for strong evidence-based claims when those signs have become recognized by Brazilian users. Automated conflict detection can feed directly into 3022 oppositions, creating a data-driven enforcement loop.

8.3 Retail, FMCG & Franchising

For retail and fast-moving consumer goods, slogans and trade dress elements may benefit from AD arguments when the brand has achieved broad penetration in Brazil. However, brand owners should still prioritize inherently distinctive marks and rely on AD only as a complementary strategy.

9. Multilingual Notes (PT-BR & ZH-CN)

9.1 Nota em Português (Resumo Técnico)

Em 28 de novembro de 2025, o INPI disponibilizou uma nova atualização do Manual de Marcas, acompanhada das Portarias INPI/PR nº 15/2025 (Distintividade Adquirida) e nº 36/2025 (Oposição com restrição de alegações – código 3022). O conjunto normativo consolida:

• um procedimento estruturado para reconhecimento de distintividade adquirida (secondary meaning);
• uma nova modalidade de oposição restrita, limitada ao art. 124, XIX, da LPI;
• maior alinhamento com as práticas do EUIPO, USPTO e CNIPA.

9.2 简体中文简要说明 (ZH-CN)

自 2025 年 11 月 28 日起，巴西国家工业产权局（INPI）通过更新《商标审查手册》并发布 第 15/2025 号公告（显著性取得）和 第 36/2025 号公告 （限制性异议，3022 服务代码），对商标实务进行了重要改革。

主要变化包括：

• 正式引入 “显著性取得”（Acquired Distinctiveness） 的结构化评估框架；
• 设立基于 第 124 条第 XIX 项 的 限制性异议程序（仅针对在先注册商标的混淆性冲突）；
• 在实践上向 EUIPO、USPTO 和 CNIPA 的标准靠拢，使巴西在拉美地区成为更具可预测性的商标管辖区。

10. Sources & References

• Brazil – Law No. 9.279/1996 (Lei da Propriedade Industrial – LPI).
• INPI – Manual de Marcas, updated on 28 November 2025 (section “Atualizações”).
• Portaria INPI/PR nº 15/2025 – rules on Distinctiveness and Acquired Distinctiveness.
• Portaria INPI/PR nº 36/2025 – creation of service 3022 (Restricted Opposition, Art. 124 XIX LPI).
• EUIPO – European Union Trade Mark Regulation (EUTMR) and Examination Guidelines.
• USPTO – Trademark Manual of Examining Procedure (TMEP), particularly provisions on §2(f) Acquired Distinctiveness.
• CNIPA – China National Intellectual Property Administration, Trademark Examination and Review Standards.

This article has been generated and structured with support from the TWS IP AI Tool, combining comparative legal analysis with data visualization. It is intended for informational purposes only and does not replace tailored legal advice for specific cases or portfolios.