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Brazil has made an important advancement in harmonizing its trademark system with international standards. On June 10, 2025, the Brazilian Patent and Trademark Office (BPTO) published Ordinance No. 15/2025, which formally introduces the concept of acquired distinctiveness (also known as “secondary meaning”) into Brazil’s trademark prosecution system.
This reform opens new possibilities for companies whose marks, while initially lacking inherent distinctiveness, have gained recognition through use in the market.
Under Brazil’s Industrial Property Law (BIPL), the registrability of a trademark has traditionally been based on its inherent distinctiveness. Signs that are descriptive, generic, or commonly used in reference to a product or service were historically ineligible for registration. However, Brazilian courts have occasionally upheld trademarks that have become associated with a specific company in the marketplace, even if they were initially considered descriptive. Despite this judicial flexibility, the BPTO did not have a formal procedure to recognize acquired distinctiveness, and claims of secondary meaning were often dismissed due to the absence of a clear regulatory framework.
Ordinance No. 15/2025 now provides a structured mechanism for applicants to demonstrate acquired distinctiveness. The regulation, effective November 28, 2025, amends Ordinance No. 08/2022 and creates Chapter XVI-A, which specifically addresses the examination of acquired distinctiveness. Under the new framework, applicants can submit evidence of acquired distinctiveness at different stages of the application process, including at the time of filing, within 60 days after publication in the Official Gazette, or in response to a rejection, opposition, or administrative nullity action.
For pending applications or registrations under dispute, a 12-month window will allow applicants and owners to request the examination of acquired distinctiveness beyond the usual timeframes. This transitional provision provides an opportunity to demonstrate secondary meaning for marks that may have been facing challenges based on lack of inherent distinctiveness.
The evidence required to establish acquired distinctiveness includes proof of continuous use of the mark for at least three years and evidence that a significant portion of the Brazilian public recognizes the mark as identifying the applicant as the source of the goods or services. Third-party documents, such as market research or independent surveys, are recommended to support these claims, although consumer surveys are not explicitly required.
The introduction of acquired distinctiveness into the BPTO’s regulatory framework represents a significant step forward for trademark law in Brazil. This reform aligns Brazil with international best practices, offering companies the chance to protect marks that have gained distinctiveness through market recognition, including descriptive terms and non-traditional marks. It also reflects the BPTO’s commitment to modernizing Brazil’s trademark system and ensuring it remains responsive to the evolving nature of branding in the global marketplace.
By José Roberto de Almeida and Jéssica Lima
July 21, 2025