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THE MAIN FIVE NEW RULES INTRODUCED BY NORMATIVE INSTRUCTION N. 095/2018 - INPI

THE MAIN FIVE NEW RULES INTRODUCED BY NORMATIVE INSTRUCTION N. 095/2018 - INPI by Pietro Ariboni (Ariboni, Fabbri & Schmidt Law Firm)

Sao Paulo, April 15th,2019

We briefly present the main changes introduced by Normative Instruction n. 095/2018, of December 28th, 2018, which establishes conditions for the registration of Geographical Indications (GIs) in Brazil and revokes the previous regulation (IN 25/2013).

1) Gentilic names (adjectives related to place names) were included in the concept of geographical name; Broadening the interpretation of Articles 177 and 178 of the Brazilian IP Law, the geographical nature of any other denomination was recognized as registrable, not only the official toponym. From now on, GIs like “Mozzarella Campana” and “Parmigiano Reggiano” can be registered.

2) Gentilic or geographical names may now be followed by the name of the product or service. The BPTO now recognizes the need to ratify in its entirety the GI as traditionally used on the market. Thus, GIs like “Grana Padano” and “Pecorino Romano” can be registered, without having to be limited to the simple geographical name, like the GI "Prosciutto San Daniele", which was limited to "San Daniele".

3) Non registrable GIs: (a) names that are likely to cause confusion with other GIs; (b) commonly used geographical or gentilic names; (c) names of plant varieties already registered as cultivars; and (c) names of animal breeds.
4) Any producer or service provider can use the GI, as long as the company is established in the territory, complies with the required procedures, and subjects to the control established, even if said company does not have a link with the procedural substitute (association, union or any other entity that acts as such) that requested/obtained the registration. We emphasize the fact that the GI registration is not constitutive of property rights. The applicant for a GI, as a procedural substitute, has the right of use as a concessionaire. Therefore, said registration will not prevent the regular and legitimate use of the registered GI by manufacturers or service providers, with activities included in this regulation, even if they are not associated with the company that registered the GI.

5) It is possible to make changes in the registration of a GI registration regarding: (a) the name of the GI and its graphic or figurative representation; (b) the delimitation of the territory; (c) the technical specifications of the GI; and (d) the type of GI. Such changes may only be requested after 24 months of the GI registration.

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