The power of trademarks: registrable and non-registrable trademarks

Abstract

The work examines the trade marks that may be registered and those which, by legal prohibition, may neither be filed for registration nor commercialised. It situates the trade mark as a visually perceptible distinctive sign under article 122 of Law No. 9.279/96 and reconstructs the origin of trade mark law and its evolution in Brazil, from the silence of the 1824 Constitution to Law No. 2.682/1875, Law No. 3.346/1887, adjusted to the 1883 Paris Convention, constitutional recognition in 1891, Law No. 5.772/71 and the current Industrial Property Act. It surveys the categories set out in the law in force — product and service marks, certification marks, collective marks, marks of high renown and well-known marks — with the rules of use required by articles 147 to 149 and the grounds for extinction of the registration. It discusses the special protection of marks of high renown in all fields, the regime of well-known marks under article 126 of Law No. 9.279/96 and article 6 bis of the Paris Convention, the evidence required by the INPI under Resolution No. 110/2004, and the criteria for assessing notoriety. It holds that the protection of the well-known mark concerns the proprietor and also the consumer.