TRADEMARKS, PATENTS AND INDUSTRIAL DESIGNS ARE VALID ONLY IN BRAZIL
Thus, if the entrepreneur wishes to export products identified by the trademark of his/her ownership or even exploit his/her invention in the international market, should make as many deposits as the countries of interest, under penalty of being barred later.
In the patent case, the situation is different. To preserve the novelty of the invention, the holder must make the deposit abroad, obeying certain deadlines established by international agreements, because otherwise it will fall into the public domain and may be freely used by others.
The Brazilian legislation of intellectual property has, as in most countries, its own characteristics and definitions. The sign of international treaties aims the agility and equitable treatment of information, but the world is still far from a single formalization concerning terms and procedures. Therefore, in each project, the national legislation overlaps the international specific way, creating intersection and according fields and fields of divergence. Handling the details of the definitions and procedures, both nationally and internationally, and especially understand conflicts or differences of understanding in different laws applied to a same project is our specialty.
BRUNNER offers strategic protection of intangible assets in any country in the international market, advicing the best way to protect it in accordance with the advantages and benefits regulated in the international treaties, in order to guarantee agility, cost reduction and cover larger areas.
For encouragement to transparency and information we provide below a brief description of the main treaties which Brazil is a signatory, to facilitate future discussion of cases with our clients:
The Patent Cooperation Treaty or PCT entered into force in Brazil in 1978.
It was developed basically aiming to simplify the procedure of patent applications and the grant of additional time to those who are interested in protecting the invention abroad, in addition to lowering the costs.
In summary, the applicant for a patent, resident or national of one of the coutries signatory of the Treaty, may, within the term of 12 months on the Unionist priority, require an “international” application, through a single procedure in one language, designating hereby all countries of interest.
The request will be consisted in two distinct phases: the international stage, when it will be carried out, by WIPO – World Intellectual Property Organization – the search for previous registers worldwide, with the goal of having knowledge of the state of the art, allowing the holder to change and / or adjust their request; and the national stage, when it will be performed the exam of the patentability of the subject by the patent office of each country where the application will be carried out.
The international patent application accomplished through PCT has the following advantages over patent application required directly in each country:
- Getting stronger foreign patents. The international search of previous registrations carried out in the international phase of the application will allow the holder to know all the subjects that comprise the state of art. In the event of existing any prior impediment, the holder can ajust the request, which avoids conflicts and also strengthen the patent;
- Extension of the deadline to start the national stage. The holder of a patent application seeking to extend it to other countries, has a term of twelve (12) months, counting from the date of the deposit held in Brazil, to make the request directly and individually in each country. In case of applications made with PCT basis, the holder may deposit in each country of interest (national phase), within 30 (thirty) months from the filing in Brazil;
- Reduced costs when entering the national phase of the application. The international application conducted by PCT will be in a way accepted and approved by all countriesmembers of the Treaty reducing incidents cost the national phase form;
- Short-term for the grant of the patent. The formal examination in relation to the attached documents and the examination of prior registrations procedded in the international phase, make the international application, to be applied in countries of interest of the holder, has a simplier procedure by the local Patent Office of each country, thus shortening the deadline for the grant of the patent.
The increasing amount of applications and adherence to this Treaty by new countries have already proven its effectiveness.
When it entered into force, the Treaty contained eighteen (18) member countries and, until July 2014, it had the participation of 148 (one hundred and forty eight) countries.
European Community Trademark or brand, as it is also known, is a trademark, registration valid in all 27 EU countries, namely: Austria, Belgium, Bulgaria, Cyprus, Denmark, Slovakia, Slovenia, Spain, Estonia, Finland, France, Greece, Holland, Hungary, England, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Czech Republic, Romania and Sweden.
As a main advantage, it provides the possibility of obtaining a single valid registration in all member countries, which is processed by a single agency, the Office for Harmonisation in the Internal Market or OHIM, reducing the necessary costs for obtaining and maintaining trademark rights.
The European Brand began in 1994 and in 2007 were required over 87,000 brands, with the applicants not only those residing in the Commonwealth as well as foreigners.
Registration may be required by any person or entity, on a national or resident of the countries of the European Union or a signatory to the Paris Convention.
The application may be filed up to three (3) international classes, paying a one time fee, and may aggregate other classes in the same order, if paying additionally the relative surplus value to each class.
There are several types of marks that can be registered, among which we can highlight the word mark, the figurative mark (in this case mixed marks are also regarded as figurative), three-dimensional, slogans, ie, every sign that can be represented graphically and be suitable for distinguishing goods or services of one company from the other.
There is a great advantage for maintaining the registration of European brand. The exploitation of the mark in only one of the EU member countries is sufficient to prove its effective use in any proceedings for forfeiture.
European Industrial design or Community design
The Community design is a record that protects the outward appearance of a product or part thereof in respect of its lines, contours, colors, shapes, textures, materials and / or its ornamentation.
The register of a Community Design shall garantee, to its holder, the protection in all EU member countries, namely: Austria, Belgium, Bulgaria, Cyprus, Denmark, Slovakia, Slovenia, Spain, Estonia, Finland, France, Greece, Holland, Hungary, England, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Czech Republic, Romania and Sweden.
It provides the following advantages:
- the possibility of obtaining a single record, from just one application, valid in all member countries;
- to be processed and managed by a single agency, the Office for Harmonisation in the Internal Market or OHIM;
- to be presented in a single language; and especially
- the reduction of the costs required to obtain and maintain the registration.
The registration of a Community design came into force in April 2003 and can be requested by any person or entity, on a national or resident of the countries of the European Union or a signatory to the Paris Convention.
In a single application can be claimed the protection for one (1) product or several products, since they refer to the same type or “family” of products.
The registration of a Community design shall be valid for five (5) years from the date of application for the registration, and may also be renewed for equal periods, up to a limit of 25 (twenty five) years duration.