Protection of Industrial Designs in Brazil

Protection of new products through the registering of industrial designs has been gaining momentum in Brazil and drawing more and more attention from Brazilian and foreign businesses seeking to ensure exclusive commercial exploitation of their creations.

This growing interest is reflected in the rising number of applications filed with the Brazilian Patent and Trademark Office (BPTO).

The Institute’s database shows that since the new Industrial Property Law, (Law No 9,279/96), took effect, over 50,000 industrial design applications have been filed. Of these, over 45,000 applications, or more than 90%, were approved.

The number of applications filed in 2008 (not yet consolidated) was 5,580 according to the Institute’s management report. This shows an increase of around 5% over 2007 and 54% compared to the number applications filed in the year 2000.

Of the total number of applications in 2008, estimates indicate that approximately 65% were national, that is to say by individuals and companies residing in Brazil.

From a legal standpoint, lawmakers opted for a simple, expedient and effective system by adopting a registration mechanism without substantive examination and applicable to any and all goods that can be produced in large scale.

Under the Industrial Property Law, the protection period can be as long as twenty-five years. In addition, an optional substantive examination may be requested at any time during the term, only by the owner, to obtain an official BPTO opinion as to the legal requirements on novelty and originality.

Different than systems found in other countries, here there is no exception to protection in certain industrial sectors, so that the creators of new ornamental arrangements are guaranteed exclusivity, among other things, on the elements in these arrangements, for example in the case of autoparts.

Under the law, as many as twenty structural variations of the same product can be included in a single registration, provide that these variations maintain the same predominant distinctive characteristics. This provision unquestionably allows owners to protect their rights on any structural variations of their creation, thereby widening the scope of protection.

Currently, approval is issued in a relatively short period (about one year after application is filed).

As if this were not enough, registration costs are considerably lower than those of the patent system, since the mandatory procedure no longer includes bureaucratic expenses like examination requests and annual fees. Once the application is filed, the only applicable fees are the five-year fees and those for renewal after the tenth year.

Finally, it is worth noting that registration of industrial designs does not preclude the same owner seeking protection by way of trademark registration, provided the product’s ornamental arrangement can also serve to distinguish it from others of a different origin that are identical, similar or akin.

Clearly then, the numbers of applications and the many advantages discussed reveal that the role of industrial designs in the strategies of Brazilian companies has been expanding, proving these are important competition and marketing tools.

Additionally, the solid performance of Brazil’s economy in recent years has given foreign industries incentive to look here for protection for a wide range of products, including mobile phones, computers, vehicles, autoparts, tennis shoes and furniture, among others.