The National Institute of Industrial Property (INPI) has published today, January 8th, 2019 the Normative Act 232/2019 which creates the Industrial Design Manual. Considering the need to ensure greater quality, transparency and uniformity in the scope of the examination of Industrial Designs, the principle of legality, impersonality, morality, publicity and efficiency, among others that should govern the Public Administration.
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In Brazil, the legal provisions for industrial designs are included in the Industrial Property Law (9,279/96). This law is supplemented by normative acts which regulate the National Institute of Industrial Property (INPI). The most recent of these are Normative Acts 44/2015 and 45/2015, and now the 232/2019.
Industrial designs are classified according to the Locarno Agreement and are granted under a registration system that shares similarities with the Brazilian patent system. The article 95 of the Industrial Property Law defines an ‘industrial design’ as any ornamental plastic form of an object or any ornamental arrangement of lines and colours that may be applied to a product, that provides a new and original visual result in its external configuration, and that may serve as a type for industrial manufacture.
What benefits does an industrial design registration provide?
For business owners, an industrial design registration may be a valuable business asset. The success of a product is usually influenced by its appearance; in an aesthetic-driven consumer base, the looks of a fashionable product looks can often be equally or more important than its functionality.
Obtaining exclusive rights to a product with a particular appearance may result in a substantial return on the investment because it will allow you to prevent others from reproducing a popular design.
An industrial design registration in Brazil gives you exclusive rights to the commercial production, marketing and sale of your product for 25 years. It also prevents your competitors from importing a product that copies or very closely resembles your design into Brazil.
If your industrial design is infringed upon, you may bring your case to court and be awarded damages for the lost sales you have incurred as a result of the infringement of your design registration. This allows you to focus on establishing products on the basis of superior industrial design without worrying about knock-offs from competitors who can produce items cheaper or who can scale their manufacturing quicker.
An industrial design registration can also be sold or licensed to others. If you do not want or do not have the capability to produce the product protected by your industrial design, you may be able to sell or license your design to another and earn a royalty on their sales.
Further, your industrial design registration can help you establish goodwill in the trademark sense in particular shape and appearance of the article, which is referred to as its get-up in trademark law. Having sufficient reputation in the get-up of a product becomes a separate ground for excluding others from copying your design.
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period of exclusivity provided by an industrial design registration allows your reputation in the design to build and then potentially provide those protectable trademark rights that can extend indefinitely as long as sufficient reputation in the get-up is maintained.
Registering your industrial design in Brazil
Just like other types of intellectual property, industrial designs (or elsewhere, designs) are only valid in the country in which the owner has obtained a registration. If you are looking to get protection outside of Brazil, you will need to register separately with that country’s or region’s intellectual property office.
As Brazil is part of the Paris Convention, Brazilian applicants are entitled to a six-month convention priority period to file a corresponding application in other jurisdictions. What that means in practice is that, when you file in other countries within six months of your original filing date, the filing date of that application will be deemed to be the same as your filing date in Brazil, putting you ahead of similar applications from others in that jurisdiction who may have filed in the intervening period.
A search of existing industrial designs may be conducted prior to filing an industrial design application through the online industrial design database on the National Institute of Industrial Property (INPI) website. This can help you determine if your design has already been registered by another.
Brazil is not yet a member of the Hague System so filing an international design application is not available to Brazilian design applicants. Brazilian applicants can however file a single application with the European Union Intellectual Property Office to obtain protection in all 28 member states of the European Union.
Conclusion
Design registration can provide significant benefits to your business, including ownership of exclusive rights to manufacture and sale of the design. This will allow you to exclude competitors from the market as well as the potential to profitably sell or license your exclusive rights to your design to others.
If you believe that your industrial design is original and has commercial potential, industrial design registration is a worthwhile investment. To learn more about how to get an industrial design registration in Brazil, contact us now for a complimentary and confidential initial telephone appointment.