A groundbreaking shift in Brazilian trademark practice was made official. The Brazilian Patent and Trademark Office (BPTO) published Ordinance No. 15/2025, formally recognizing acquired distinctiveness — or secondary meaning — as a valid legal argument during trademark prosecution.
Until now, marks considered merely descriptive or lacking inherent distinctiveness had little chance of registration unless their owners were willing to battle it out in court. Arguments that a sign had become distinctive through use and consumer recognition were routinely dismissed at the administrative level. But with this new rule, the INPI opens the door to a more predictable and accessible process for brand owners.
The ordinance establishes clear criteria: applicants must demonstrate that their mark has been in substantial and continuous use for the past three years and that it is recognized by a relevant portion of the public as identifying a single commercial source. This marks the first time such evidence can be formally submitted to the INPI with the potential to overcome a refusal based on descriptiveness, genericism, or lack of distinctiveness.
“This is a real turning point,” says Lívia Helayel, partner in the Trademark practice at Daniel. “For the first time, the INPI is acknowledging the commercial reality that brands build value and recognition over time — even when they start out as non-distinctive.”
The ordinance also defines strategic procedural windows for submitting acquired distinctiveness claims, including at the time of filing, within 60 days after publication, during appeals of refusals, and in response to oppositions or nullity actions. A 12-month grace period was also introduced for pending applications or disputes, allowing applicants to file the request outside of these standard timeframes.
According to Helayel, this change is particularly meaningful in industries where technical or descriptive language is common. “Many companies invest heavily in advertising and brand building. Now, that effort can translate directly into legal protection — not just in court, but before the INPI itself.”
She also emphasizes that strong technical preparation will be essential. “Evidence will need to be robust. Consumer surveys, market studies, and data showing how the public perceives the brand will play a key role. That’s something we’ve long used in litigation, and now it becomes equally important in administrative proceedings.”
The ordinance will come into force on November 28, 2025. The INPI is expected to release further implementation guidelines, including how and when to submit the new petitions through its digital platform.