by Rodrigo Borges Carneiro
January 01, 2004
The purpose of this paper is to provide an overview of the major Intellectual Property rights in Brazil.
Patent protection in Brazil is guaranteed by the Constitution’s article 5, §§ 29, as well as by the Industrial Property Law 9279/96. In Brazil, inventions may be protected both through patents or utility models.
The requirements for obtaining a patent in Brazil are absolute novelty, inventive activity (i.e. it should not be obvious to a person skilled in the art), and present industrial application. The industrial application is given when the invention can be made or used in any kind of industry.
The term of protection for a patent is 20 years and for an utility model is 15 years from the date of filling, according to the present Brazilian Industrial Property Law which came into effect on May 14, 1997.
The patent confers on its proprietor the right to prevent third parties from manufacturing, using, offering for sale, selling or importing for such purposes, without his consent, a product that is the object of the patent or the process, or a product directly obtained by the patented process. Certain exceptions to the protection are the private use of the patent without commercial purposes and for experimental use.
Trade secrets are protected in Brazil under article 195 of the Brazilian Industrial Property Law, related to crimes of unfair competition. International agreements such as the Paris Convention and the Trips Agreement also address trade secrets.
The doctrine specifies that any information that is valuable and secret can be protected as a trade secret. The legal nature of trade secrets in Brazil is still a subject of intense debate but the majority of the doctrine considers that trade secrets are protected by the rules against unfair competition.
It is considered to be a crime of unfair competition to disclose, exploit or use, without authorization, confidential knowledge, information or data usable in the industry (which should be understood in a broad sense), commerce or the providing of services, which was accessed by means of a contractual or employment relationship, even after the termination of the contract or when obtained directly or indirectly by illicit means or fraud. The exceptions are information or data which are of public knowledge or which are obvious to a person skilled in the art. Employers, partners or administrators of an undertaking incurring in the criminal act of unfair competition are to be considered liable for their acts. The penalty for crimes of unfair competition ranges from 3 months to 1 year of detention time or a fine.
Trademark protection in Brazil is guaranteed by the Constitution’s article 5, §§ 29, as well as by the Industrial Property Law 9279/96.
Several international treaties such as the Convention Union of Paris and TRIPS, both valid in Brazil, also support trademark law.
Article 122 of the Industrial Property law 9279/96 determines that, "any visually perceptive distinctive sign, when not prohibited under law, is susceptible of registration as a trademark."
In Brazil, one must register a trademark at INPI – National Institute of Industrial Property. The successful registration of a trademark will grant a term of 10 years counted from the date of its issuance. It will be renewable for equal and successive periods. Forfeiture for non-use is possible in the event the mark has not been in use for five years after the registration is granted. The owner is guaranteed exclusive use of the trademark throughout the national territory. The registrant of, or applicant for, a trademark is also guaranteed the right to assign his registration or application for registration, license its use and care for its material integrity or reputation. Protection for well-known marks is also available.
Copyright protection in Brazil is guaranteed by the Constitution’s article 5, §§ 27 and 28, as well as by the Industrial Property Law 9279/96 and also by international treaties such as the Berne Convention and TRIPS.
In Brazil, the creation of literary, artistic or scientific works is protected by Federal Law 9,610 of 1998. The law protects: (a) ownership rights – the author has the exclusive right to use his work as he sees fit; and to authorize its use by third parties (e.g. for promotion); and (b) moral rights – the author’s right to be recognized as the creator of the work in question; to prevent it from being used inadequately or in part; and to withdraw it from circulation if he so desires.
The copyright owner has the exclusive right to use, publish and reproduce the work in any form. The protection is granted regardless of registration, which is optional in Brazil – according to some international treaties of which the country is a signer. The general term of protection is for 70 years, starting from the January 1st of the year following the death of the author.
The copyrights may be wholly or partly transferred to third parties or by his successors, in a universal or individual transfer effected in person or through representatives with special powers, by licensing, concession, assignment or any other means recognized by law, subject to limitations set by Law 9610/98.
Software protection is afforded according to law 9609/1998. The law defines software as the expression of an organized set of instructions in natural or code language, contained in a physical support of any kind, necessarily employed in automatic machines for the manipulation of data, devices, tools, or peripheral equipment, based on digital or analog technique, so that they will operate in the way and with the purposes determined.
The protection system for intellectual property of software is the same granted to literary works by the copyright laws and connected provisions in Brazil, with some differences as established by Law 9609.
The protection of the rights associated to the software is assured for a period of fifty years, beginning from January 1st of the year following its publication or, if this is unavailable, its creation. Registration is not a requisite for protection and the rights granted for nationals are assured to foreigners domiciled abroad, provided the software’s country of origin grants, to Brazilian and foreign citizens domiciled in Brazil, equivalent rights. The rights granted include the exclusive right to authorize or forbid leasing.