Nowadays, in Brazil it is only possible to protect trademarks composed by individual words, symbols or design, and a combination of these elements.
In some countries we can also protect colors, sounds and smells as trademark, called non-traditional marks.
A famous kind of non-traditional mark is the position mark. Position mark consists in the specific way in which the mark is placed on or affixed to the product, always in the same way, and able to identify the business source of goods and services. A position mark can be formed by many elements like words, letters, numbers, symbols, drawings, images, figures, colors, shapes, or the combination of these elements.
This peculiar way of positioning the mark on the product makes it distinctive. Some examples:
1) The stripes of Adidas;
2) The red bottoms of Louboutin’s shoes;
Some points require to be considered to recognize the position trademark, such as the description of the object; description of the signal applied to the object; the precise definition of signal placement and others.
Recently, the BPTO started a public consultation to discuss the topic. It is likely that we will be able to register position marks in Brazil soon.
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Author: Luciana Santos Fernandes, Junior Associate at Peduti Advogados.
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“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.”