Brazil’s National Institute of Industrial Property (INPI) has reopened its priority examination route for trademark cases based on prior-use rights. The route had been temporarily suspended in August after the relevant quota was exhausted. Its return does not create a new first-to-use trademark system: Brazil remains fundamentally registration-based, while Article 129(1) of the Industrial Property Law preserves an exception for a good-faith user that can show use in Brazil for at least six months before a third party’s filing or priority date in connection with identical, similar or related goods or services. INPI’s current practice allows that claim to be raised in opposition proceedings and in administrative nullity actions against a registration, supported by evidence of actual use and by the claimant’s own filing position.
For brand owners facing bad-faith filings, the practical significance lies more in speed and evidence strategy than in a relaxation of the substantive test. INPI’s new Internal Regulations, announced on 8 September, also reorganise institutional responsibilities and decision-making structures, which may help some prior-use disputes move through the administrative system more efficiently. The evidentiary burden remains central, however: invoices, advertising, transaction records and online sales material need to establish use before the critical date with enough clarity to withstand challenge. Companies already trading in Brazil without a completed registration should therefore treat prior-use rights as a defensive safeguard, not as a substitute for timely filing and disciplined evidence preservation.
