The Brazilian Patent and Trademark Office (BPTO) has made significant strides in recognizing acquired distinctiveness in trademark law by publishing in the Official Bulletin No. 2840 of June 10, 2025, Ordinance No. 15/2025, which allows the possibility of demonstrating acquired distinctiveness through use during trademark examination.
These instances are as follows:
- On the date of filing a trademark application;
- or Within 60 (sixty) days following the publication date in the Official Bulletin;
- When an appeal against the rejection of a trademark application is based on lack of inherent distinctiveness;
- When a Response to an Opposition includes an argument of lack of distinctiveness, or;
- On the filing date of a response to administrative nullity proceedings based on lack of distinctiveness, through a clear and express statement to be attached to the petition.
Corrobation is required to demonstrate acquired distinctiveness, meaning applicants must provide evidence of:
– *Substantial and Exclusive Use*: At least five years of uninterrupted use of the trademark in the Brazilian market.
– *Consumer Recognition*: Market surveys showing that the public identifies the mark as a source identifier.
– *Investment in Brand Building*: Detailed records of advertising campaigns and expenditures.
The subject was the focus of a public consultation held between October 2024 and January of the following year, and these rules will take effect in November 2025, when INPI/PR Ordinance No. 15/2025 comes into force.
The implications are a game-changer for brand owners filling a long-standing gap in the recognition of acquired distinctiveness before the BPTO. These developments provide clarity, predictability, and a fairer process for securing trademark rights in Brazil as well as increased protection as Brand owners can now rely on acquired distinctiveness to protect their trademarks even if they are not inherently distinctive. It goes someway to streamlining of the registration process as the new guidelines aim to reduce the need for costly and time-consuming litigation, making it easier for brand owners to protect their trademarks.