Trademark registration in Brazil for foreign companies: what you need to know
A foreign company has the same rights as a Brazilian owner, but the law requires it to keep a representative domiciled in Brazil, and one post-allowance deadline causes approved marks to be lost every year.
A company based abroad can register its trademark in Brazil, with the same rights as a Brazilian owner. What differs is the path: there is one legal requirement that cannot be worked around, two possible filing routes, and a post-allowance deadline that causes already approved marks to lapse every year.
I cover the three below, in the order they arise in practice.
Does a foreign company have the same rights?
It does. Brazil is a party to the Paris Convention, which guarantees national treatment: a foreign owner receives the same protection granted to a Brazilian one, with no requirement of a local establishment or prior local activity. You do not need a branch, a Brazilian tax number, or local operations to own a registered trademark in Brazil.
One feature of the Brazilian system is worth stressing: protection arises from registration, not from use. A party using a mark in Brazil without registering it holds a weak position, and whoever registers first generally prevails. For a foreign company planning to enter the Brazilian market, that means one practical thing: file before the commercial launch.
The requirement that catches everyone: a representative domiciled in Brazil
It is the central point, and the one that most surprises newcomers. Article 217 of the Brazilian Industrial Property Act (Law 9,279/96) requires any person domiciled abroad to appoint and maintain a duly qualified attorney domiciled in Brazil, with powers to represent them in administrative and judicial matters, including to receive service of process.
The requirement is statutory, not a market convention. Without a representative domiciled in the country, a foreign owner cannot take procedural steps before the Brazilian PTO. Worse, they can miss deadlines because there is no one to receive the official publications.
The detail that matters on the international route. A party using the Madrid Protocol can designate Brazil without initially appointing a local representative, since the application arrives through WIPO. But the moment an office action is issued, a third party files an opposition, or an appeal becomes necessary, article 217 applies again and a representative domiciled in Brazil becomes indispensable. Because those deadlines are short and run from the date of publication, waiting until a problem appears before seeking representation tends to be expensive.
Two filing routes: national or Madrid Protocol
The first is the national route: the application is filed directly with the Brazilian PTO through the local representative. This is the route of choice when Brazil is the only market of interest, when the mark needs adaptation to the local market, or when the desired class coverage does not match the home registration.
The second is the Madrid Protocol, in force in Brazil since 2 October 2019, enacted by Decree 10,033/2019. Under it, an owner who already holds an application or registration in the home country files a single international application and designates Brazil among the selected countries. Brazil's accession brought two changes that apply across the board, including on the national route: multi-class applications, allowing several classes in a single file (INPI Resolution 248/2019), and co-ownership, which now permits more than one owner of the same mark (INPI Resolution 245/2019).
The Protocol also sets an eighteen-month deadline for the designated country to issue its position on the application, which provides predictability that the purely national route does not offer as clearly.
Convention priority: the six months that can save the mark
A party that has already filed the mark in another Paris Convention country has six months to file in Brazil claiming priority. In practice, the Brazilian application is treated as if it had been filed on the date of that first foreign filing.
This matters in a first-to-file system: if someone files an identical or similar mark during that window, the claimed priority preserves the foreign owner's position. Once the six months elapse, the benefit is lost and cannot be recovered.
How the application proceeds before the Brazilian PTO
The path is essentially the same on both routes once the application reaches the PTO:
- Filing and formal examination. Formal requirements are checked. Any office action must be answered within the deadline, or the application is shelved.
- Publication in the Industrial Property Gazette. From that date, third parties have 60 days to file an opposition.
- Response. If an opposition is filed, the applicant has 60 days to reply.
- Substantive examination. The PTO assesses registrability: whether the mark is generic, whether it conflicts with an earlier mark, whether any statutory bar applies.
- Decision. The application is allowed or refused. A refusal may be appealed.
- Grant. Once allowed, the payment deadline discussed below begins to run, after which the certificate is issued.
The deadline that costs the most marks
Many owners assume that allowance ends the process. It does not. Under article 162 of the Industrial Property Act, the fees for issuance of the certificate and for the first ten-year term must be paid and evidenced within 60 days of the allowance. A further extraordinary period of 30 days is available on payment of a specific fee and without any notice being given. Once that second period lapses without payment, the application is definitively shelved.
The outcome is a harsh one: the mark was approved, survived examination and any opposition, and is then lost to an administrative deadline. The risk is higher for foreign owners, because the clock starts with publication in the Gazette, and with no representative monitoring those publications nobody abroad is told.
How long the registration lasts
A Brazilian trademark registration is valid for ten years from the grant and is renewable for equal and successive periods, without limit. The renewal request must be filed during the final year of the term; if that deadline is missed, a further six-month period is available on payment of a surcharge. After that, the registration lapses.
Frequently asked questions
Do I need a company or branch in Brazil to register my trademark?
No. No Brazilian tax number, branch or local operation is required. What the law requires is a representative domiciled in Brazil, under article 217 of the Industrial Property Act.
Does my home registration already protect the mark in Brazil?
No. Protection is territorial: a registration obtained abroad has no effect in Brazil. You must register here, either nationally or by designating Brazil under the Madrid Protocol.
If I use the mark in Brazil without registering, do I have any rights?
The position is weak. The Brazilian system grants ownership to the party that registers, not the one that used the mark first. Narrow exceptions exist for prior good-faith users and well-known marks, but they are difficult to prove.
Using the Madrid Protocol, do I still need a Brazilian attorney?
Not to designate Brazil. But to respond to an office action, defend against an opposition or file an appeal, yes: article 217 requires a representative domiciled in the country, and those deadlines are short.
What happens if I do not pay after allowance?
The application is definitively shelved. The deadline is 60 days from allowance, with an extraordinary period of 30 days on payment of a specific fee.
Facing this situation?
Every case turns on the documents and the evidence available. If what is described here resembles your situation, get in touch to discuss the options in your specific case.
This article is for information only and does not replace analysis of a specific case. Sending a message through these channels does not, in itself, create an attorney-client relationship.