Trademark protection plays a fundamental role in modern business activities. In addition to identifying the origin of products and services, trademarks constitute valuable intangible assets, embodying reputation, investments, and economic value built over time.
In Brazil, the trademark system is generally governed by the first-to-file principle, under which the exclusive right to a trademark arises from a valid registration granted by the Brazilian Patent and Trademark Office (INPI). In this context, the good faith of system users is essential to ensure the proper protection of distinctive signs and legal certainty in competitive relations.
Nevertheless, situations are not uncommon in which third parties seek to use the trademark registration system in a strategic and abusive manner, filing applications without any legitimate business interest, often with the purpose of hindering competitors, preventing others from obtaining protection for certain trademarks, or even securing undue economic advantages.
Against this backdrop, the Industry, Trade and Services Committee of the Brazilian House of Representatives recently approved a substitute bill to Bill No. 2,496/2024, introduced by Congressman Helder Salomão, which seeks to amend the Brazilian Industrial Property Law by creating a specific criminal offense related to fraudulent trademark filings.
Under the proposal, any person who files a trademark application without engaging in the corresponding economic activity, with the intent of obtaining an unlawful advantage or preventing the registration of a mark by a party that effectively operates under an identical or similar trademark, may be held criminally liable. The proposed penalty consists of detention from one to three months or a fine.
During the legislative discussions, the proposal received contributions from the Brazilian Patent and Trademark Office (INPI). As highlighted by the bill's rapporteur, Congresswoman Ivoneide Caetano, the original text contemplated the inclusion of the new offense in the chapter of the Industrial Property Law dealing with crimes against registered trademarks.
According to INPI's understanding, however, the conduct addressed by the proposal does not necessarily involve already registered trademarks, but rather the pursuit of unlawful advantages through the registration of signs that are already being used by third parties but have not yet been registered. For this reason, INPI suggested that the provision be relocated to the chapter governing crimes committed through trademarks, trade names, and advertising signs, a recommendation that was ultimately accepted by the Committee.
The legislative initiative represents another step toward strengthening trademark protection mechanisms in Brazil, particularly with respect to practices that may undermine the integrity of the registration system and fair competition.
Although the bill must still complete the remaining stages of the legislative process before potentially becoming law, its approval demonstrates a growing concern regarding the misuse of industrial property mechanisms and the need to enhance legal certainty for trademark owners and market participants acting in good faith.
