Brazil: Trade dress enforcement is still strong in Brazil

Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Brazil: Trade dress enforcement is still strong in Brazil

Sponsored by

daniel-400px.png
Designer sketching drawing design Brown craft cardboard paper product eco packaging mockup box development template package branding Label . designer studio concept .

Brazil's legal system provides several options for IP owners to enforce their rights. Trade dress protection is not expressly foreseen in our law but falls within general unfair competition rules which basically forbid competitors to fraudulently divert third parties' clientele.

Preliminary injunctions (PIs) are widely available and can be granted ex parte and without the need to post a bond. PIs have been consistently granted in trade dress cases, although no trade dress registration is available in Brazil.

However, a decision from Brazil's Superior Court of Justice (SCJ) at the end of 2017 changed this trend. The decision basically stated that trade dress infringement should not be decided based on the judge's subjective perspective so that an opinion from a court's technical expert was warranted.

Although such SCJ decision is not formally binding, lower courts started rejecting PIs on trade dress cases based on the argument that a court's expert opinion could not be issued at such early stages and, therefore the plaintiff's claims were not strong enough to merit a PI.

However, the SCJ decision expressly mentioned that the expert report could be waived if unnecessary based on other produced evidence. Put another way, in cases where the plaintiff provides alternative evidence which is strong enough, PIs can still be granted.

Lower courts have now adjusted their understanding and PIs are once again being granted at the State Courts of Rio and São Paulo. Plaintiffs must show evidence that the infringed trade dress is not common and that similarity between products may mislead consumers. This can be achieved by comparing available products and obtaining an independent consumer survey.

André Oliveira

more from across site and SHARED ros bottom lb

More from across our site

Deals between five more law firms and President Trump and an antitrust lawsuit against Amgen were also among the top talking points this week
US counsel explain how they win new cleantech IP business and how they’re navigating the industry’s challenges
Leaders at the IP firms, which have joined forces with backing from a PE investor, share their vision of building the number one pan-European IP practice
Firms will steer clients towards other ways of getting quicker examinations, but fear the ramifications of the USPTO’s decision
Melissa Haapala added that returning to client advocacy and the chance to work on patent litigation were reasons for returning to private practice
Michelle Clark, who has a generalist litigation background, plans to focus on IP disputes at Alston & Bird
Philips and Vivo have entered into a licensing agreement, putting an end to a five-year-old telecom SEP dispute in India
Stefan Müller discusses managing deadlines, the importance of reflection, and why IP is more than just a 'nice to have'
The three founders of the IP firm’s new US offering say they plan to offer a unique proposition in a market fixated by the billable hour
The opinion provides useful guidance when it comes to how courts might consider contributory infringement, DMCA claims, and other issues in AI copyright cases
Gift this article