Monday, 10 October 2011

Brazil upholds trade mark applicant's entitlement to relief

In August of this year the Brazilian Superior Court of Justice held that a trade mark applicant is entitled to enforce IP rights against third parties even before the trade mark registration has been granted. This ruling turned on a consideration of Article 129 of Brazil's Industrial Property Law (which provides that trade mark rights derive solely from a validly issued registration) and Article 130 (which confers on an applicant the right to take measures to preserve a the reputation and integrity of his trade mark in the market). The court's decision was based on the principle that delay in the issuance of a trade mark registration cannot run in favour of the infringer.

The decision has, unsurprisingly, been said to have been welcomed by the country's trade mark owners.

Source: "BRAZIL: Superior Court of Justice Confirms Trademark Applicant’s Rights to Enforcement", The INTA Bulletin October 1, 2011 Vol. 66 No. 17

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