Intellectual Property Rights – systems in Brazil

Brazil has been a member of the World Trade Organization (WTO) since 1995. This requires member nations to establish intellectual property (IP) laws whose effect is in line with minimum standards. As a result, there should be few major differences between Brazil’s laws and those of other developed countries.

Copyright

Brazil is a signatory to the Berne Convention on copyright.  The effective period for copyright protection is 70 years after an author’s death for all forms of creative work including music and literature, the only exception being software which is protected for 50 years after its creation.

Registration of copyright is advisable, and may be made with specialist bureaux responsible for the various forms of IP – for example, the Brazilian National Library.

Industrial property

The term ‘industrial property’ is used in Brazil to cover all other principal forms of IP – i.e. invention patents, utility models, trade marks and industrial designs.

The body responsible for operating the patent, utility model, industrial design and trade mark system, is the Brazilian Patent and Trademark Office, which operates under the National Institute of Industrial Property (Instituto Nacional da Propriedade Industrial).

Invention patents and utility models

Utility models, sometimes referred to as ‘minor patents’, are available in many countries including France, Italy and China, as well as Brazil. Rules for utility models are similar to those for invention patents, although the hurdle is lower for utility models.

Invention patents give protection for a maximum of 20 years, while utility models are valid for 15. It may be a good idea to apply to register a product as a utility model if your invention patent application is denied.

Brazilian patent law operates under the ‘first to file’ principle – that is, if two people apply for a patent on an identical invention, the first one to file the application will be awarded the patent.

Industrial designs

Industrial designs are covered by the same Industrial Property Law as patents and trade marks. As in other countries, this form of rights deals with the shape or other visible attributes of a product and applications must be novel. The law’s design rights provisions confer protection for ten years from the filing date, renewable for three consecutive periods of five years.

Trade marks

Trademarks are regulated in Brazil under the Industrial Property Law. The system operates in a similar way to Europe, protecting shapes, symbols, colors or other devices used to identify a business’ products or services, including trade names.

The practice of ‘cybersquatting’ – the registration in bad faith of well-known domain name marks by third parties in order to sell them to the original owners – means it is advisable for rights owners to register their domain names in Brazil as soon as possible.

Unfair competition law

Measures against unfair competition are provided for in the Brazilian Industrial Property Law. Criminal law penalties include imprisonment or a fine.

Registering and enforcing intellectual property rights in Brazil

To enjoy most types of intellectual property (IP) rights in Brazil, you should register them.

For patents (including inventions, utility models and industrial designs), individual registrations must be made in Brazil. But for rights other than industrial designs, you can apply under the terms of the Patent Cooperation Treaty, which is usually easier and quicker. You should note that if an employee creates work for your business, they, not you, will own the copyright.

For trademarks, you must register within Brazil.

For copyright, no registration is required but registering copyrights with the copyright authorities is advisable.

‘Priority rights’ under the Paris Convention can help in the local registration of trade marks, designs and patents by allowing rights previously registered elsewhere to become effective in Brazil, if filed within a time limit.

You must use a local representative (with powers to receive judicial summonses) to act before the Brazilian Patent & Trademark Office.

Enforcing your IP rights in Brazil

There are three levels at which IP rights may be enforced in Brazil:

Arbitration – although Brazilian legislation provides for arbitration procedures, both parties need to agree to it and this form of dispute settlement is therefore very uncommon in IP cases.

Civil action – The Brazilian jurisdictions has appellate courts that exclusively hear IP cases and also hear other types of appeals: The Brazilian Federal Court of Appeals for the Second Region which covers the States of Rio de Janeiro and Espírito Santo has implemented since 1 February 2005 specialized panels and a section for the judgment of cases involving industrial and IP matters. The court comprises eight panels of three judges each. The first and second panels are responsible for deciding cases involving IP issues as well as criminal and social security cases. The specialization of the Federal Court of Appeals is hoped to increase both the quality and speed of decisions in the IP cases.

Criminal prosecution – actions against the infringement of all types of IP may be brought under Brazil’s Penal Code and specific IP legislation, with (in theory, at least) higher penalties for infringers including imprisonment and fines. A criminal complaint must be preceded by a search and seizure action, which aims to collect evidence rather than halt the infringement.

Actions by Customs also play an important part in IP enforcement in Brazil. Customs can monitor and seize, ex officio, infringing products on import or export. However, there is no ‘customs recordal’ system as is available in many other countries.

Self-help considerations

There are various things you can do to make it harder in general for infringers to copy your product. For example, you could:

Think about the design of your product, and how easy it would be for somebody to reproduce it without seeing your original designs.

When you hire staff, have effective IP-related clauses in employment contracts. Also make sure you educate your employees on IP rights and protection.

Have sound physical protection and destruction methods for documents, drawings, tooling, samples, machinery etc.

Make sure there are no ‘leakages’ of packaging that might be used by counterfeiters to pass off fake product.

Check production over-runs to make sure that genuine product is not being sold under a different name.