by José Antonio B. L. Faria Correa
March 01, 2008
The attention that government authorities have given the industrial property system in recent years, most notably in the form of concrete measures to reequip the Brazilian Patent and Trademark Office (BPTO), is in keeping with the user community’s concerns. These concerns are expressed through private entities operating in the area, including the Brazilian Intellectual Property Association (ABPI), which I directed from 2000 to 2003.
Today we see renewed appreciation for the BPTO’s role, especially its primary function as guardian of industry creations, which are global and have consequences for society as a whole. Inventors or businesses, no matter where they are from, simply cannot invest in a country that does not guarantee protection of their inventions or their goods and services’ trademarks. In a world where intangible assets are the key determinants of wealth and bargaining power, negligence in this area could even be suicide.
Those most affected by the BPTO’s backlog – who still pay the consequences of the heavy volume of pending cases, which cannot humanly be settled overnight – are precisely Brazilian business that, not having registered their trademarks and without patents for their technological innovations, have over the years become powerless against mushrooming piracy, which the country has also been tenaciously fighting. Naturally, foreign investors have also been impacted by delays in granting of ownership. However, they at least have the option of moving to countries that prioritize industrial property protection more than Brazil.
Therefore, the BPTO’s renewed strength is a considerable boost for everyone. Like a true phoenix, the Office is being fully revitalized, investing in skilled labor and computerizing its operations. The trademark department is already benefitting from digital user services through electronic filing. We cannot underestimate the enormous progress this system represents: once some necessary corrections are made, it could accelerate the process for granting ownership like it already has for other services, such as registration extensions and filings for marks that do not involve goods or services of complex classification. Communication between the BPTO and users must be effective so that the system’s numerous technical and conceptual glitches may be resolved, which will encourage greater use of the digital services offered. One of these glitches directly affects the constitutional right to petition: utilization of the electronic system leaves the user unable to apply for registration of goods or services not listed by the BPTO, and with no way to file complementary petitions that clarify the scope of the application (like restrictions on the coverage of goods or services imposed by agreements with other owners). Once these problems are ironed out, there is no question that users will prefer the digital system, as is the case in other countries where use of pen and paper is minimal, exceptional, although constitutionally required (in Brazil it could be no different, given that the digital divide here is exponentially greater than in fully developed countries; moreover, any digital system, no matter how welldesigned, is subject to unanticipated failures and could crash temporarily for any number of technical reasons).