On June 10, 2025, the Brazilian Patent and Trademark Office (INPI) published Ordinance INPI/PR No. 15/2025 in its official bulletin (Revista da Propriedade Industrial) No. 2840. The new regulation establishes an administrative procedure for recognizing what is known as acquired distinctiveness.
This measure represents a significant step forward for Brazil’s trademark system. It allows companies using signs that were initially non-distinctive — such as descriptive, generic, or commonly used terms — to demonstrate, within the INPI’s own administrative process, that their trademarks have acquired distinctiveness through continuous use and consumer recognition.
Until now, there was no specific rule at INPI regulating this type of request, even though the concept of acquired distinctiveness was already recognized in legal scholarship and case law. Companies seeking protection for such trademarks had to go to court, resulting in a longer, costlier, and less predictable process.
With the new regulation, the system becomes faster, more cost-effective, and legally safer for businesses facing registration challenges due to a lack of inherent distinctiveness.
Understanding Trademark Distinctiveness
According to Brazil’s Industrial Property Law (Law No. 9,279/1996), a trademark must be capable of identifying a product or service as originating from a specific source, distinguishing it from those of competitors.
For this reason, trademarks composed solely of descriptive or generic terms—such as “Doce Natural” (“Natural Sweet”) for food or “Seguro Rápido” (“Fast Insurance”) for a brokerage—are typically rejected by INPI. However, in some cases, these terms become widely recognized by the public as trademarks rather than mere descriptions of the goods or services. Examples include ALPARGATAS, BANCO DO BRASIL, CULTURA INGLESA, REDE TV, TICKET REFEIÇÃO, and CONTÉM 1G, among others. This phenomenon is known as acquired distinctiveness, or secondary meaning in international trademark law.
With Ordinance No. 15/2025, INPI has introduced clear, standardized procedures for the recognition of acquired distinctiveness, eliminating the need for judicial action.
Key New Provisions
The Ordinance adds Chapter XVI-A to INPI/PR Ordinance No. 08/2022, allowing the recognition of acquired distinctiveness in the following situations:
- The trademark has been used substantially and continuously during the three years preceding the application;
- A significant portion of the relevant public recognizes the sign as a trademark identifying the origin of that company’s goods or services.
Applicants may request recognition of acquired distinctiveness:
- At the time of filing the trademark application;
- Within 60 days after the application is published;
- When appealing a rejection based on lack of distinctiveness;
- In responses to oppositions;
- In arguments presented during nullity proceedings on the same grounds.
The request must be expressly stated and supported by documentation — ideally including market research, advertising materials, press coverage, certifications, sales data, and other evidence demonstrating the association between the trademark and its owner.
Case example
Consider a fictional company called Pão de Ló — a Brazilian cake similar to pound cake — operating since 2010 with physical stores, a strong social media presence, and wide recognition in its market for selling cakes. Although the name is simple and descriptive, the public already associates it directly with the company.
Before the new rule, registering this trademark would have required a court decision. Now, under the new Ordinance, the company can prove acquired distinctiveness and apply for registration directly with INPI.
12-Month Transitional Period
To support the transition, INPI has established a special 12-month window, starting on November 28, 2025, during which trademark owners with pending applications or cases previously denied for lack of distinctiveness may submit a request for recognition of acquired distinctiveness. This measure offers a new opportunity for previously rejected trademarks to obtain registration.
It is important to note that even under the new procedure, INPI may issue office actions if it considers the submitted evidence insufficient. Therefore, preparing a strong and well-supported legal argument remains essential.
How Was the New Regulation Developed?
Ordinance No. 15/2025 is the result of a public consultation and stakeholder dialogue conducted by INPI between October 2024 and January 2025. The proposal was discussed with users of the trademark system as part of the “Ongoing Dialogue with Stakeholders” initiative, which aims to make the Institute’s decision-making processes more transparent and participatory.
This background underscores INPI’s commitment to modernization and the continuous improvement of its services, in line with international best practices in intellectual property management.
What Does This Change Mean for Businesses?
The regulation of acquired distinctiveness has important implications for companies that have built strong brand recognition using simple or descriptive names. By enabling this recognition directly within INPI’s administrative process, the new rule:
- Reduces the time and cost of securing trademark registration;
- Opens new avenues for defending against oppositions and invalidity claims;
- Strengthens the legal protection of well-established trademarks;
- Increases legal certainty in the business environment.
Partner with Ricci Propriedade Intelectual
At Ricci Propriedade Intelectual, our team closely monitors legislative and regulatory developments in the Brazilian trademark system. With the new Ordinance now in effect, we are ready to assist companies interested in:
- Assessing the viability of acquired distinctiveness recognition;
- Defining the most effective strategy for evidence submission;
- Preparing and filing the request with INPI;
- Developing or validating market research to support the application;
- Strengthening the legal protection of well-established trademarks.
If your company uses a trademark that could benefit from this new opportunity, now is the time to act strategically and secure official recognition from INPI.
