Acquired Distinctiveness Is Now Recognized in Brazil

BPTO Ordinance No. 15/2025

Brazil´s Trademark Office (BPTO) has issued the Ordinance No. 15/2025, which introduces the long-awaited administrative recognition of acquired distinctiveness (aka ´secondary meaning´) for trademarks.

This important development aligns Brazil´s practice with the EU and US, allowing signs initially deemed descriptive or non-distinctive to become registrable if they acquire distinctiveness through consistent and exclusive market use.

Effective Date

The new ordinance will come into force on November 28, 2025, with the procedure available in the electronic system starting from December 20, 2025, allowing for requests to be made in relation to:

• Applications already under examination under certain criteria;
• Registrations at risk of cancellation for lack of distinctiveness;
• Marks under challenge in appeals or administrative nullity proceedings.

When can a request be filed?

Petitions to claim acquired distinctiveness can be submitted only once during the life of the application, under specific procedure and fees, at one of the following moments:

• At the time of filing
• Within 60 days of publication:
• In appeals against decisions refusing the mark based on lack of distinctiveness
• As part of an opposition or nullity action that invokes lack of inherent distinctiveness

Once submitted, a 60-day period will be given to provide supporting evidence.

What evidence is required?

The petitioner must demonstrate:

• Continuous and substantial use of the sign in Brazil for at least 3 years prior to the specific secondary meaning’s analysis request.
• That a relevant portion of the public associates the sign with the applicant’s goods/services (consumer perception) and can distinguish it from similar products or services of other origins.

Acceptable evidence includes

• Sales figures and advertising investments
• Market surveys and consumer recognition studies
• Press coverage, awards, and marketing campaigns
• Screenshots of social media and websites

Strategic considerations for clients

• Assess existing portfolios: Identify descriptive marks that could benefit from this new route.
• Gather evidence early: Building a strong evidentiary record will be crucial. Consider commissioning consumer perception surveys.

This is a significant step forward in Brazilian trademark law and represents a valuable opportunity to expand protection for signs that have earned distinctiveness in practice.

Do not hesitate to reach out to our team for further details or to schedule a strategic portfolio review.