IP for startups in Brazil

Intellectual property’s rights is for sure one of the concerns a startup needs to worry about, and it is important to identify when to protect your rights, and what are the priorities to be protected.

Initially, when there is a consensus on which trademark will be used for the products or services provided, it is recommended to file an application for a trademark registration as soon as possible, even if it is in the name of one of the founders, transferring the ownership in the future, when a legal entity is constituted.

A trademark registration is a preventive measure, since, if the startup decides to register the trademark only in the future, when it has already invested in advertising, or the trademark is already stamped on its products and materials, it is possible that the trademark will be already registered in the name of a third party, for the same market segment, so it will be necessary to change the name, giving rise to losses.

In this same sense, it is important to register the domain name (address of the company’s website) right away, in order to guarantee its availability of use, even for a future moment, when the startup will be, in fact, in activity.

Regarding patent protection, despite the possibility of the founders having a brilliant idea in their hands, it is not possible to protect an idea in Brazil, since a patent must meet the requirements: a) inventive step; b) novelty; and c) industrial application. The protection of this idea, however, may be carried out in the future, when it fulfills such requirements, as well as it is possible to sign a confidentiality term between the companies involved in the startup, in order to avoid greater risks.

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Lawyer Author of the Comment: DRM

“If you want to learn more about this topic, contact the author or the managing partner, Dr. Cesar Peduti Filho.”
“Se quiser saber mais sobre este tema, contate o autor ou o Dr. Cesar Peduti Filho.”

Trademark Dilution

Trademark Dilution

Trademark dilution refers to acts that weaken the uniqueness of a famous trademark, typically as a result of blurring or tarnishment of the famous trademark. Unlike trademark infringement, trademark dilution involves use of a trademark in connection with goods or services that do not compete with those connected to the famous trademark. Trademark dilution therefore stands for the proposition that some trademarks are so well known that they deserve protection beyond the standard likelihood-of-confusion analysis for determining trademark infringement. 

The elements of a trademark dilution are:

  • Fame —A trademark must be famous for dilution purposes to allege a claim of trademark dilution;
  • Protects the Strength of a trademark for the Owner —Instead of protecting consumers from confusing the source of (a) competing, (b) similar, or (c) related goods or services because of the similarity of the trademarks, trademark dilution protects the owner of a famous trademark from any entity that would weaken the ability to identify and distinguish the goods or services of the genuine trademark;
  • Necessary Showing —The owner of a famous trademark need only show that there is a likelihood of dilution, rather than the actual existence of dilution, to be awarded relief. 

Trademark Dilution

In Brazil, Dilution is not foreseen by law. We use, by extension, the article 130, III of the Brazilian IP Law which says: “Art. 130. The trademark owner or the depositor is also guaranteed the right to: III – ensure their material integrity or reputation.”

Also, here in Brazil, there are three types of Dilution:

  1. Tarnishment: association with less valuable products or services.
  2. Blurring: weakening of a strong sign by using it in other contexts.
  3. Adulteration: adulteration of the brand, modifying its basic characteristics

The dilution theory is widely recognized by Brazilian courts, even though it is not clearly provided in the Brazilian IP Law.

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Lawyer Author of the Comment: Laís Iamauchi de Araujo
Source 
Headline: Trademark Dilution – Brazilian Courts

“If you want to learn more about this topic, contact the author or the managing partner, Dr. Cesar Peduti Filho.”
“Se quiser saber mais sobre este tema, contate o autor ou o Dr. Cesar Peduti Filho.”