On August 20,
2013, the Brazilian PTO published Resolution No. 107/2013, of August 19,
2013, which establishes an independent and facilitated procedure regarding
article 125, of the Brazilian Industrial Property Law (Law No. 9.279/96)
concerning famous marks in Brazil. The Resolution will enter into force after
the Brazilian PTO publishes a new schedule of official fees including the fees
for this new procedure, which is expected to be published in the upcoming days.
With the entry
into force of the new text, former Resolution No. 23/13 will be revoked. The
new independent procedure for requesting the famous status of a mark is an
improvement of the old system, where a request for the grant of the famous
status of a mark could only been made incidentally, as a defense argument, during
opposition or administrative nullity action procedures. Now, with the new
resolution, such request can be submitted to the appreciation of the Brazilian
PTO anytime during the validity of the mark.
According to the
new procedure, a request for the famous status shall be filed through a
specific petition including all the necessary evidence of famous status of the
mark, duly translated to Portuguese. Each requirement shall comprise only one
mark and can be submitted at any time while the mark is valid.
To be considered a famous, a trademark must fulfill three main
requirements: i) wide recognition by the public in general;
ii) high level of quality, reputation and prestige associated by the public; and iii) sufficient degree of distinctiveness and exclusivity.
After the
examination of the request and upon the publication of the grant, the famous
status of the mark shall be valid for ten years, instead of only 5 years in the
old system, unless the mark is cancelled before the end of said period or the
decision of the grant is reversed. Finally, after the end of the ten year
period, a new request may be filed in order to maintain the famous status
condition.
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