Brazil – Latam Guideline

Contracting Party of the Madrid System: YES.*

* Brazil can only be designated in IR marks filed after 2 October 2019 

Trade Mark Law in force: 

Industrial Property Law No. 9279/1996. 

Classification: 

Nice classification, 11th edition 

Multiclass Applications: 

Possible for IR trademarks

Not possible for national trademarks 

Registrable trademarks: 

Words, names, acronyms, letters, numbers, devices, combination of colours, three-dimensional forms, position trademarks and any combination of the aforementioned signs.

Non-traditional trademarks, such as, smell, sound, movement, holograms and gestures are not subject to registration in Brazil. However, they are not completely unprotected, as they can be defended through Unfair Competition legislation. 

Formal filing requirements: 

• Power of Attorney merely signed (no legalization and no notarization required) within 60 days from filing date.
• Scanned copy of the priority application and its translation into Portuguese within 120 days from filing. 

Examination: 

• Absolute grounds for refusal: YES.
• Relative grounds for refusal: YES. 

Opposition period: 

60 days from publication date. 

Average time from filing to grant: 

Approximately 1,5 years, unless any obstacles were raised.

Term of protection: 

10 years from the date of registration. 

Use requirements: 

YES. Cancellation can be requested if the trademark has not been used for 5 years, counting from the registration date. Partial cancellation action is possible. 

Renewal terms: 

1 year prior to the renewal date.

Grace period: 6 months. 

WIPO-administered Treaties: 

Contracting Party of the Paris Convention: YES

Contracting Party of the Patent Cooperation

Treaty (PCT): YES. Due term for entry into national phase: 30 months. 

Patent Law in force: 

IP Law 9279/1996 

Formal filing requirements: 

Power of Attorney: merely signed (no legalization required) within 60 days from filing. Scanned copy is valid.

• Assignment document from the inventors merely signed (no legalization required) within 60 days from filing (180 days if Convention application). Not required if priority’s applicant is the same or there is an assignee note in US-priorities.
• Certified copy of priority application within 180 days from filing (not required for entry into national phase of PCT applications provided that PCT/IB304 form is available). 
• Sequence listings must be filed in WIPO Standard ST.26 format.

Filing of the patent application in a foreign language: 

1. Only partial translation accepted (title, claims, abstract) Late submission of the complete Brazilian translation is acceptable within 60 days from filing.

Substantive examination must be requested by the applicant: 

YES, within 36 months from filing date (international filing date in the case of entry into national phase of PCT). 

Observations by third parties: 

YES. Between publication and completion of the technical examination. 

Opposition: 

YES. Between publication and completion of the technical examination. 

Average time from filing to grant: 

10 years. 

Term of protection for patents: 

20 years from filing date.

Term of protection for utility models: 

15 years from filing date (according to article 40 of the Brazilian Property Law)

Maintenance: 

Yearly during prosecution of the application. 

Compulsory licensing: 

YES 

WIPO-administered Treaties: 

Contracting Party of The Hague System: NO. 

Applicable Law: 

Industrial Property Law 9279/96. 

Grace period for filing applications, from disclosure: 

180 days. 

Multiple design applications -one application for different embodiments-available: 

YES, the application must refer to a single object, a plurality of variations being permitted, provided that they are destined for the same purpose and maintain between them the same distinctive characteristic, each application is limited to a maximum of 20 variations.  

Formal filing requirements: 

Drawings, including all views of the object. The object shall be presented in all orthogonal views (front, rear, upper, lower and both sides) and at least one perspective.  Figures should not be technical drawing boards and should not contain frames, measures, texts, symbols, cuts, indication of scale and any kind of information. The figures should consist of continuous, uniform and firm lines (no dotted lines are allowed), and it is well to point out that all views must be sufficiently clear and show a high graphic resolution (at least 300 dpi). 

Brief description of the object.

Locarno class.

Power of Attorney (neither notarisation nor legalisation required). 60 days from filing. (unextendible)

Assignment document (neither notarisation nor legalisation required), when applicable. 90 days from filing.

Priority document, when applicable. 90 days from filing unextendible. Mandatory Portuguese translation.  

Locarno classification: 

Yes. 

Deferred publication: 

Yes, 180 days. 

Opposition: 

Nullity proceedings may be instituted ex officio or at the request of any person with a legitimate interest within 5 years from granting. A request or an ex officio institution will suspend the effects of grant of a registration if presented or published within 60 days from grant. 

Average time from filing to grant: 

1-2 years. 

Term of Protection and Maintenance: 

25 years: initial term of 10 years renewable for 3 successive terms of 5 years. 

Does it accept an administrative request for surveillance?

YES

Intellectual property rights protected through an administrative request for surveillance

Trademarks

Requirement to file for an application of an administrative request for surveillance

List and Registration of Trademarks
Certificate of Registrationc
PoA

Procedure (special aspects)

If the customs authorities identify goods that they suspect to infringe intellectual property rights, the authorities will detain the goods and notify the intellectual property holder to assist them in examining these goods to confirm whether or not they infringe their intellectual property rights.

Territory: Brazil

Data Protection Regulations: Law N ° 13.709 / 2018

Regulatory purpose: Processing of personal data, including in digital media, by a natural person or by a legal person under public or private law, in order to protect the fundamental rights of freedom and privacy and the free development of the personality of the natural person.

Parties:

• Data controller: Yes. Natural or legal person, public or private law.
• Data Processor: Yes. Natural or legal person, whether governed by public or private law, who processes personal data on behalf of the controller.
• Data Protection Officer: Yes.

Supervisory Authority: Yes. National Authority for the Protection of Personal Data (ANPD)

Principles: 

• Purpose
• Adequacy
• Need
• Free Access
• Data quality
• transparency
• Security
• Prevention
• Non-discrimination
• Responsibility
• Accountability

Obligations:

• Register of Processing Activities: Yes.
• Impact Assessments: Yes.
• Risk analysis: Yes.
• Technical and organisational security measures: Yes.
• Duty to inform: Yes.
• Data Protection Officer: Yes.

Data subjects’ rights:

• Right of Access: Yes.
• Right of rectification: Yes.
• Right of Suppression: Yes.
• Right to limitation: Yes.
• Right to portability: Yes.
• Right to object: Yes.
• Automated individual decisions, including profiling: No.
• Other rights:

Right of Explanation: The data subject has the right to receive clear and adequate information about the criteria and procedures used by the controller.
Revocation of consent: The data subject may revoke his or her consent to the processing of his or her personal data at any time, with express manifestation being sufficient, by means of a free and facilitated procedure.
Right to information: The data subject has the right to receive information about the public and private entities with which the controller has shared data.

International transfers:

The international transfer of personal data is only permitted in the cases provided for in Article 33:

• The countries or international bodies provide a level of protection of personal data adequate to that provided for in the LGPD;
• The Controller offers and accredits compliance with the principles, rights of the holder and the data protection regime provided for in the LGPD;
• The transfer is necessary for international legal cooperation between public intelligence, investigation and prosecution bodies, in accordance with the instruments of international law;
• The transfer is necessary to protect the life or physical safety of the holder or third parties; The national authority authorises the transfer;
• The transfer will give rise to a commitment made in an international cooperation agreement;
• The transfer is necessary to protect the life or physical safety of the holder or third parties;
• The transfer is necessary to protect the life or physical safety of the data subject or third parties;
• The national authority authorises the transfer;
• The transfer will give rise to a commitment made in an international cooperation agreement;
• The transfer is necessary for the execution of public policy or legal attribution of the public service;
• The data subject has given his or her specific and prominent consent to the transfer;
• The data subject has given his or her specific and prominent consent to the transfer.

Thus, taking into account the rules provided for in the LGPD, international transfer of personal data by companies in the field of processing activities is possible, provided that all contracts are adequate to the requirements of the law, as well as to compliance with the principles, the correct legal basis for the processing and the rights of data subjects.

There is no magic formula that can be shared and that works for everyone, the transfer will depend on a consultancy and review of the contract.

Sanctioning regime:

• Warning, indicating the deadline for taking corrective measures;
• Simple fine of up to 2% (two per cent) of the revenue of a private law legal entity, group or conglomerate in Brazil in its last fiscal year, excluding taxes, limited, in total, to R$ 50,000,000.00 (fifty million reais) per infraction;
• Daily fine, observing the total limit referred to in item II;
• Disclosure of the infraction after its occurrence has been duly investigated and confirmed;
• Blocking of the personal data to which the infringement refers until its regularisation;
• Deletion of the personal data to which the infringement relates;
• Partial suspension of the operation of the database to which the infringement refers for a maximum period of 6 (six) months, extendable for an equal period, until regularisation of the processing activity by the data controller.
• Suspension of the exercise of the personal data processing activity to which the infringement refers for a maximum period of 6 (six) months, extendable for an equal period;
• Total or partial prohibition of the exercise of activities related to data processing.

Certification or accreditation of compliance for companies: No.