Intellectual Property Rights in Brazil

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Intellectual property rights in Brazil

Brazil is one of Britain's priority overseas markets. If you plan to do business in Brazil, or if you are already trading there, it is essential to know how to use, guard and enforce the rights you have over the intellectual property (IP) that you or your business own. This guide explains about IP in general, and gives guidance on how to apply these principles in the Brazilian market. It describes the issues you may face with IP infringement in Brazil, offers advice on how you can effectively tackle these, and provides links to sources of further help.
What are intellectual property rights?

Intellectual property (IP) is a term referring to a brand, invention, design or other kind of creation, which a person or business has legal rights over. Almost all businesses own some form of IP, which could be a business asset. Common types of IP include: Copyright - this protects written or published works such as books, songs, films, web content and artistic works. For more information, see our guide on copyright for your business. Patents - this protects commercial inventions, eg a new business product or process. For more information, see our guide on how to get patent protection for your business. Designs - this protects designs, such as drawings or computer models. For more information, see our guide on design right and registration. Trade marks - this protects signs, symbols, logos, words or sounds that distinguish your products and services from those of your competitors. For more information, see our guide on how to use trade marks in your business. IP can be either registered or unregistered. With unregistered IP, you automatically have legal rights over your creation. Unregistered forms of IP include copyright, unregistered design rights, common law trade marks and database rights, confidential information and trade secrets. With registered IP, you will have to apply to an authority, such as the Intellectual Property Office in the UK, to have your rights recognised. If you do not do this, others are free to exploit your creations. Registered forms of IP include patents, registered trade marks and registered design rights.
International considerations
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Brazil has been a World Trade Organisation (WTO) member since 1995. WTO member nations must include some IP protection in their national laws. This means that if you are doing business with Brazil, you will find some similarity between local IP law and enforcement procedures, and those in force in the UK.
Treaties and reciprocal agreements

Brazil is also a signatory to the following international IP agreements: the Paris Convention - under this, any person from a signatory state can apply for a patent or trade mark in any other signatory state, and will be given the same enforcement rights and status as a national of that country would be the Berne Convention - under this, each member state recognises the copyright of authors from other member states in the same way as the copyright of its own nationals the Patent Cooperation Treaty - this is a central system for obtaining a 'bundle' of national patent applications in different jurisdictions through a single application Brazil is not a signatory to the Madrid Protocol, which allows a bundle of national trade mark registrations in different jurisdictions to be made through a single application. It is also not a signatory to the Hague Agreement, which allows the protection of designs in multiple countries through a single filing.
Intellectual property rights - systems in Brazil

Brazil has been a member of the World Trade Organisation (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 - for more information, see the page in this guide: what are intellectual property rights? 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 - ie 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
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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
Trade marks are regulated in Brazil under the Industrial Property Law. The system operates in a similar way to Europe, protecting shapes, symbols, colours 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. Download a table comparing Brazil and UK IP rights (PDF, 26K) - Opens in a new window. Download a European Union (EU) and international IP protection procedures summary (PDF, 27K) - Opens in a new window.
Registering and enforcing intellectual property rights in Brazil

To enjoy most types of intellectual property (IP) rights in Brazil, you should register them.
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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 trade marks, you must register within Brazil. For copyright, no registration is required but registering copyrights with the copyright authorities is advisable. To find out more about the different IP systems in Brazil, see the page in this guide: intellectual property rights - systems in Brazil. '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. Some UK patent and trade mark attorneys can cover Brazil. However, 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 - there are no special courts exclusively dealing with IP-related cases. The ordinary civil courts deal with cases as appropriate. Laws relating to trade name registration and protection are contained within the Civil Code. All other areas of IP have their own specific legislation. 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.
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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.
Potential problems faced in Brazil and how to deal with them

Brazil has made a lot of improvements in recent years in intellectual property (IP) laws. It has also set up official/private partnership organisations at national level, such as the National Council for Combating Piracy and Intellectual Property Crimes. This supports the government's National Anti-Piracy Plan. These efforts focus attention on improving conditions for rights owners in Brazil. There is a backlog in the processing of applications of all types by the Patent and Trademark Office, mainly involving opposed applications, which currently take six to seven years to be resolved. The patent registration process may take as long as eight years depending on the type of patent. Without registration, your IP remains vulnerable to infringements of all kinds. However, there are some ways you can still protect a trade mark pending registration.
Avoiding problems
The most important way to avoid problems when defending IP rights in Brazil is to be prepared. To make sure that you can anticipate any potential issues, you should: take advice from Brazilian IP rights experts consult publications and websites on Brazilian IP rights and protection in general carry out risk assessment and due diligence checks on any organisations and individuals you deal with take professional advice from other experts - eg lawyers, local diplomatic posts, Chambers of Commerce and the London-based Brazilian Chamber of Commerce talk to other businesses already doing similar business in Brazil consult agents, distributors and suppliers on how best to safeguard your rights check with trade mark or patent attorneys to see whether there have been previous registrations of your own marks, or other IP, in Brazil stick to familiar business methods - don't be tempted to do things differently because you're trading in a different country
Who should take responsibility for your IP protection?

You should make sure that everyone in your business takes some responsibility for IP protection. Many businesses depend on the integrity of their IP, and it can often be one of their most valuable assets. So it should be given proper attention by both management and employees, as well as other businesses that you have
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relationships with. It may be sensible to nominate a manager to have particular responsibility for understanding and protecting your IP rights. In businesses with legal departments, a legally-trained manager would be a good choice.
Top tips for IP protection in Brazil

The most important things you can do to protect your IP rights in Brazil are: stick to your normal business instincts do as much as you can to prevent infringements in the first place - prevention is better than the cure assess the risks of the market and make preparations take self-help measures to protect your IP make sure everyone in your business values its IP, including you register your IP rights create good relationships with organisations that can help you consider mediation before defensive action if action is necessary, consider sending a cease and desist letter through a local lawyer first
Where to get intellectual property help in Brazil

Whether you're resident in and doing business in Brazil, or trading internationally with the country, there are a number of professional organisations that can offer you advice and support: UK diplomatic posts - there is a British Embassy in Brasilia, ConsulatesGeneral in Rio de Janeiro and Sao Paulo, and Commercial Offices in Porto Alegre and Recife. They cannot intervene with Brazilian legal or administrative processes, but they may be able to keep a watching brief when cases are brought to Brazilian courts, or lobby on your behalf if progress is slow. Find out about the work and services of UK diplomatic posts in Brazil on the UK in Brazil website - Opens in a new window. British Chambers of Commerce (BritCham) branches in Brazil organise intellectual property (IP) related events, and their members include local UK lawyers as well as businesses with direct experience of IP issues. BritCham has offices in Rio de Janeiro, Sao Paulo and Rio Grande do Sul. Find out about BritCham membership on the BritCham website - Opens in a new window. Many law companies, both local and international, have offices in the major cities of Brazil, as well as patent and trade mark attorneys. Search for a law firm in Brazil on the Which lawyer? website - Opens in a new window.
Related guides on businesslink.gov.uk

Get patent protection for your business Copyright for your business Use trade marks in your business
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Design right and registration Download a table comparing Brazil and UK IP rights (PDF, 26K) Download an EU and international IP protection procedures summary (PDF, 27K) Intellectual property protection overseas Intellectual property crime and your business Download a UK IP protection procedures summary (PDF, 31K) Download an IP rights enforcement summary (PDF, 27K)
Related web sites you might find useful

UK diplomatic posts in Brazil overview on the UK in Brazil website http://ukinbrazil.fco.gov.uk/en/ BritCham membership guidance on the BritCham website http://www.britcham.com.br/default.asp?idioma=1 Brazilian law firm search on the Which lawyer? website http://whichlawyer.practicallaw.com/which /firmRecommendationsByJurisdictionSpecialisation.do?jurisdictionId=:22206& specialisationId=:25784 You can find this guide by navigating to: Home > Create, innovate and protect > Protecting your intellectual property > Intellectual property protection overseas Crown copyright 2011
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