The business name in the Brazilian legal order: legislative developments and prospects

Abstract

The study examines the business name in the Brazilian legal order, an institution that, particularly after 2011, has become one of the most prominent bêtes noires of Commercial Law, for reasons classified as internal and external. It covers the concept, functions, applicable principles and types of business name, their relation to corporate forms, legal nature and transferability, and reconstructs the legislative development of its protection, from Decree No. 916 of 1890 to the Industrial Property Code of 1969, from the 1971 Code to the Civil Code of 2002 and to the present day, set against the case law of the Federal Supreme Court and the Superior Court of Justice, Article 8 of the Paris Convention, Law No. 9,279/96, the acts of the DREI and comparative law. It addresses the tension between the functions of identifying the entrepreneur and of protecting credit and goodwill, the limits of the territorial exclusivity conferred by registration with the Boards of Trade, and the conflict between business name and trademark. It holds that the competitive dimension of the business name remains defensible under the Paris Convention and the Industrial Property Law, although recent decisions of the Superior Court of Justice point towards state-level limitation.