Judges are empowered — and often expected — to take a hands-on, practical approach
Over the past few years, Brazil has started to gain traction as a forum for standard essential patent litigation — and a big reason for that is how preliminary injunctions work here. But long before SEPs were trending, injunctions played a central role in Brazilian IP enforcement.
This article aims not just to explain the legal rules, but to explore why injunctions are so common — and powerful — in Brazil, especially compared to other countries. And part of that story is personal.
I remember one of my very first solo experiences arguing for a PI. I was a young attorney and had just filed an infringement lawsuit, and was waiting for the case to be assigned to a judge. Once it was, I went to the judge’s chambers — this was in the state court of Rio de Janeiro — and asked for a meeting to present our urgent request.
I got a slot in a day or two. When I arrived, the judge welcomed me cordially and asked me to explain the case. I began detailing how it involved trade dress infringement, but also pointed out that my client had several trademark registrations for a specific colour combination. I was ready to make a full argument, with all the legal and procedural bases laid out. But before I could get too far, the judge interrupted me and said:
“Yes, I’m familiar with your client — they’re quite prominent in this industry. No need to go on, the injunction is granted. You can expect the written decision in a couple of days.”
And that was it.
Now, this was a highly respected judge, who later became an appellate judge before retiring. Of course, not every case plays out like that — many are far more complex and contested. But the experience stuck with me because it shows something unique about our legal culture.
In Brazil, judges are empowered — and often expected — to take a hands-on, practical approach. They rely not just on legal arguments, but also on their own perception, experience, and judgment. And especially in IP, where the rights and the harm are often very visible, that personal view can carry real weight.
So Why Are Injunctions So Common in Brazil? There are a few key reasons.
First, the legal standard is more accessible. Brazilian procedural law allows courts to grant urgent relief when there is a probability of success on the merits and a risk of imminent and irreparable harm to the plaintiff’s IP rights. This is considerably more flexible than in jurisdictions like the United States.
As a Brazilian lawyer — and an interested observer of US case law — I think it is worth briefly contrasting with the eBay v MercExchange standard, which requires plaintiffs to prove:
(1) irreparable injury;
(2) that remedies at law (such as monetary damages) are inadequate;
(3) that the balance of hardships favors the plaintiff; and
(4) that the public interest would not be disserved by granting an injunction.
In Brazil, an allegation of IP infringement already gives rise to a presumption of irreparable harm. Issues like balance of hardships or public interest are rarely central to the analysis.
While our courts do understand that final rulings might be slow and that damages are hard to enforce, these elements aren’t formally weighed the way they are in US cases. The standard is more direct, and more focused on whether the alleged right appears likely and if harm is imminent.
Second, our judges — even though impartial — play a more active role. In contrast to common law systems where judges often remain neutral until trial, Brazilian judges — operating under a civil law model — are expected to engage early. They will meet with attorneys, assess evidence from the outset, and are comfortable issuing fast, sometimes even ex parte, decisions.
Third, IP rights require swift judicial response. Intellectual property is inherently time-sensitive. When it comes to protecting and enforcing IP rights, timing is everything — and judges know this. If an IP holder is forced to wait for a final ruling on the merits, the harm may already be irreversible. In many cases, preliminary relief is not just important — it is the only effective relief available.
And finally, there is no mandatory requirement for a bond to grant the PI. This removes a major cost barrier that exists in many jurisdictions, making it easier and more practical for plaintiffs to seek urgent measures.
For companies protecting IP in Brazil, this means injunctions are not theoretical — they are a central part of any enforcement strategy. Whether the issue is counterfeiting, trademark or patent infringement, or increasingly, SEP-related disputes, the ability to act fast and obtain meaningful judicial relief early on is critical.
Of course, not every request is granted. Today, the most challenging cases often end up needing a decision from the appellate courts, and the best outcomes still depend on preparation, clarity, and timing. But the system itself gives judges the tools — and the culture encourages them — to grant relief when it makes sense.
Over the years, I have handled much more technically complex cases and have faced much tougher hearings than that first experience in Rio. But that moment taught me something essential about how injunctions work in Brazil: it is not just about ticking legal boxes — it is about understanding how to connect your case to the judge’s sense of logic, fairness, and experience.
And when that happens, the system responds. Not just quickly, but meaningfully — ensuring Brazil remains a jurisdiction where IP rights can be effectively protected.
https://www.iam-media.com/article/injunction-culture-understanding-brazils-approach-urgent-ip-relief