In depth
What is acquired distinctiveness? Acquired distinctiveness refers to the ability of a sign that originally lacks inherent distinctiveness (e.g., descriptive or generic terms) to become eligible for trademark protection through effective and consistent use that leads consumers to associate the sign exclusively with the owner’s products or services.
Why it matters: Under Brazilian law, distinctiveness is a core requirement for trademark registration. The new regulation brings greater legal certainty and transparency, allowing applicants to seek protection for previously ineligible signs, provided they have gained distinctiveness through use.
Evidence requirements: To support acquired distinctiveness, applicants must submit evidence demonstrating: (i) continuous use of the mark in Brazil for the last three years prior to the request; and (ii) that a significant portion of the relevant public associates the sign exclusively with the applicant.
Procedural windows: Requests for recognition of acquired distinctiveness may be submitted: (i) at the time of filing the trademark application; (ii) within 60 days of application publication; (iii) in appeals against rejections based on lack of distinctiveness; and (iv) in responses to oppositions or nullity actions based on the same ground.
Transitional rule: For pending applications and ongoing nullity proceedings, a 12-month window is granted, starting from the effective date, to request recognition of acquired distinctiveness.
Effective date: The new rules take effect on 28 November 2025.
Next steps: We are available to assist in assessing eligibility for acquired distinctiveness claims and preparing the necessary supporting documentation.
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