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21 February 2018TrademarksPaulo Bianco

Pharma trademarks in Brazil: an exception to the rule

A massive investment in time and money is required through the phases of research, development and launch of a new product in the market. Even when the product is ready to be produced on a large scale, pharmaceutical companies still depend on marketing approval from the Food and Drug Agency (in Brazil, this is called Anvisa).

This article will discuss pharmaceutical companies’ obligation to use a registered trademark (as any other trademark registration owner), while also facing serious challenges to start or continue trading their medicines.

The Brazilian Patent and Trademark Act (LPI), Law #9,279/1996, establishes in its section 142, item III that a trademark registration can be cancelled by forfeiture due to lack of use. The law establishes an administrative procedure in which interested third parties can request that a registered owner provides evidence to the Brazilian Patent and Trademark Office (INPI) that the trademark in question is being used.

This administrative cancellation action due to non-use is elaborated in section 143 of Law #9,279/1996. This section establishes that a registration will be forfeited on the request of any person with a legitimate interest, if, after five years from its grant, on the date of such request: (a) use of the trademark has not started; (b) use has been interrupted for more than five consecutive years; or (c) the trademark in question has been used for more than five years with a substantial modification in its distinctive character—when compared with the trademark actually granted by the INPI, according to the corresponding certificate of registration.

Section 143, first paragraph, establishes that the trademark will not be cancelled where the owner provides legitimate reasons for non-use. Section 143, second paragraph, sets out a 60-day term for the owner to provide evidence that the trademark at stake is actually in use.

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