TRADEMARKS IN BRAZIL
“IT IS INCONCEIVABLE THAT VARIOUS
PETITIONS ARE STILL PENDING ANALYSIS— AND HAVE BEEN FOR MORE THAN A DECADE—AND NO DECISION HAS BEEN MADE.”
of highly-renowned status for their marks, with the expectation that
the INPI will analyse the
petitions with greater efficiency in view of the improved model already implemented, but at a much higher cost.
A death blow to legal principles
Brazil will host the FIFA World Cup of 2014 and, besides preparations in the fields of telecommunications, infrastructure, transport and stadiums, the trademarks in FIFA’s Official Symbols list were duly considered and then annotated in the INPI’s records as being highly renowned for the purposes of special protection prescribed in Article 125 of the IPL, as expressly provided for in Law No. 12,663 of June 5, 2012.
which was always the target of criticism by users of the system.
On August 20, 2013, Resolution No. 107 was published in the Revista da Propriedade Industrial, INPI’s Official Gazette, designed to establish the form of applying the provision laid down in Article 125 of the IPL, in light of the “need to improve the model for recognising the highly- renowned status of a mark”, considering the “principle of efficiency that, among others, should govern public administration”.
From then on, it became feasible to file autonomous proceedings prior to the application of special protection, at any time during the validity of the registration, by way of a specific petition supported by evidence that the mark was recognised by a broad section of the public at
www.worldipreview.com
large. It was also recommended that a “nationwide mark image survey” take place to assess the degree of distinctiveness and exclusivity of the sign. Aſter ten years, a new petition could be filed, meeting the same requirements, unless new regulations had been introduced by the INPI.
Although published on August 20, 2013, this resolution came into effect only on March 11, 2014 (Ordinance No. 27). It also amended the official fee table for the services provided by the INPI. Te cost of a petition for highly-renowned status was fixed at R$37,575 ($16,700) if the petition was by email, and R$41,330 ($18,400) if it was on paper. Previously, the maximum amount was R$3,840 ($1,700).
Accordingly, companies owning registrations in Brazil may finally petition for a declaration
Besides the immediate declaration of high renown for its marks, FIFA was given an exemption from paying any official fees relating to the procedures in the ambit of the INPI until December 31, 2014.
Tis is obviously unconstitutional because it violates the principle of equality enshrined in Article 5 of the Federal Constitution.
If Resolution No. 107 had not already dealt a death blow to the principles of legality, purpose, juridical security and public interest, as well as efficiency that implies reasonable process duration, what is now seen with the sanctioning of the World Cup Law is a fresh violation of the Federal Constitution in that it assures FIFA privileges that other mark owners—Brazilian or before the INPI.
foreign—do not enjoy World Intellectual Property Review Annual 2014 55
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