Ordinance No. 15/2023 from Brazil’s National Institute of Industrial Property (INPI) establishes clearer criteria for recognizing acquired distinctiveness in trademarks. This concept allows initially generic or descriptive signs to become legally recognized trademarks after continuous use and market notoriety.
What is acquired distinctiveness?
It occurs when a term initially “generic or descriptive” (like “Delicious” for food products) is perceived by the public as an exclusive brand due to prolonged use, advertising investment, and market positioning.
Key updates in the Ordinance:
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Evidence criteria: Continuous use, exclusivity, and public recognition, measured through surveys, revenue, or advertising.
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Application to non-traditional marks: Colors, sounds, and shapes can also acquire distinctiveness.
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Legal certainty: Prevents improper registration of generic terms without relevant proof of use.
Why does it matter?
Companies that have spent years building the reputation of a “weak” mark now have a safer path to legally protect it. This change benefits brands like “Skype” for online calls, which started as descriptive but gained public recognition.
(Source: INPI Ordinance 15/2023)
