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Custom Recordal of IPRs in Brazil


Custom Recordal of IPRs
No - Although there is no custom recordal system in Brazil, the IP rights holders have the possibility of using other mechanisms to stop or at least reduce illegal imports in the country.
The Customs Regulation (Decree Law no. 6,759/2009) - forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in Brazil.
Custom Recordal of IPRs is effective both on the import and export of goods.
The customs authority has the role of inspecting and detaining goods, which are found to be of suspected nature, probable of infringing upon the IPRs of the legitimate proprietor. Although there is no procedure to record rights with the customs, other facilities enable the customers to take ex-officio measures and destroy the same to prevent them from entering the Brazilian Markets.
For engaging the customs to enforce intellectual property rights, it is advised to file an inspection request before the Central coordination of customs affairs COANA. This allows the customs authority - ex-officio or at the request of an interested party - to identify and seize any product that may infringe your IPRs. Also, a request can be made at the National Directory to Combat Counterfeiting (NDCC), which is a database developed by the National Council to Combat Piracy (CNCP) and INPI, whose objective is to ease the interaction between Brazilian enforcement authorities and trademark owners. It is also advised to register your IPR with the Brazilian Patent and Trademarks Office.
Once you have registered your IPRs before INPI and included it within the above-mentioned databases, the customs authorities will be more likely to detect the potentially infringing products. If so, you and/or your legal representative will be notified as to verify the origin of the blocked goods.
The documents to be submitted are as follows:
  • A list of your IPRs (together with their registration certificates)
  • Any information that helps the customs identify fake products or products imported illegally (without the proper IPR holder’s license)
  • A request for surveillance of any illegal imports that may infringe upon your company’s rights
  • Contact information of your legal trademark representative domiciled in Brazil
  • The names of the companies that are authorized or licensed to import the related products in Brazil
For recording an IPR is with the customs, no limitation period applies upon the customs to inform the applicant of any application. However, for other kind of applications, including one with the COANA and the National Directory to Combat Counterfeiting, the application is accepted as soon as all the information on the trademarks or intellectual property rights, contact details, and details of the representatives, including that of the original product, are given and entered in the database. The same is deemed accepted.
Yes, it is centralized. After filing the request, the COANA shall send the information provided by the IP rights holder to all the Brazilian ports. Port authorities will intensify the monitoring over the goods bearing your trademark.
There is an online system for petitioning the request of inspection before the COANA and the National Directory to Combat Counterfeiting.
If upon inspection of the goods, the goods are found to be infringing upon the intellectual property rights of legitimate rights holder, the customs authority may suspend the clearance of imported goods.
The applicant bears the expenses related to suspension of release of infringing goods.
10 days
Yes - In case the local customs require a court order, the trademark holders should file a preliminary injunction (see Glossary) before the Federal Court to request the seizure of the goods (see Glossary) or turn the retention into a seizure.
10 days
If the goods are found to be infringing, the legal representative of the IP rights holder will be verified as to the origin of the blocked goods. Thereafter, the request of seizure and destruction of goods before the customs has to be made after adducing the following documents:
  • Affidavit signed by the trademark holder’s representative (copy and original) - The deadline to present this document varies from port to port
  • Petition requesting the destruction of the goods
  • Power of Attorney (POA): notarized and legalized. It may be also necessary to provide a certified translation if the POA is not in Portuguese
  • Trademark certificates
  • Other pieces of evidence of the IP holder’s rights (for instance, assignment contract)
The IP rights holder has the choice of either instituting administrative proceedings or judicial proceedings upon finding that the goods are of infringing nature. If an administrative proceeding has to be initiated, no legal proceedings are needed. However, where judicial proceedings are to be instituted before the court, it is necessary to be join the legal proceedings, which may take up to 02 to 03 years to arrive at the decision of whether or not the product is to be destroyed.
In the course of judicial proceedings, a no objection or concurrence document may be required.
It is important to note that the Customs suffers from a considerable lack of resources, which is why it is important for the IP rights holder to assist by providing relevant information and working closely with the appropriate agency.
The court may require the submission of other documents like the ones that can prove the IP owner’s right, for example - assignment contract, affidavits, petitions of request made.
The possible remedies awarded by the court include destruction of goods.