The Brazilian Patent and Trademark Office (BPTO) published on June 10, 2025, the Ordinance No. 15, dated June 3, 2025, which institutes the acquired distinctiveness system for trademarks in Brazil.
When can acquired distinctiveness be claimed?
The request for acquired distinctiveness may be filed: (i) at the time of filing of a new trademark application, (ii) within 60 days after the publication of the trademark application, (iii) within a response to a third-party opposition or nullity request, or (iv) within an appeal against a decision issued by the BPTO.
For pending applications that have already passed the phases listed above, the applicant may file the acquired distinctiveness request within an extraordinary period of 12 months from the date the new regulation enters into force, i.e. until November 28, 2026.
What documentation is required to prove acquired distinctiveness?
- Substantial and continued use of the trademark during the three years preceding the request, which may be demonstrated by means of invoices related to the sale of goods or the provision of services covered by the trademark in the Brazilian territory, as well as advertising materials, among other documents; and
- Recognition by a significant portion of the Brazilian consumer of the relevant goods or services that the trademark is exclusively associated with its owner and is capable of identifying the goods or services, as well as distinguishing them from those of competitors. The ideal evidence for this requirement will be a market survey.
Our Intellectual Property team is available to assist and clarify any doubts you may by e-mail pi@smabr.com or by phone +55 (11) 3146-2400.
