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GUIDE TO CREATION, USE AND CONSERVE OF TRADEMARKS

WHAT ARE TRADEMARKS? - WHY PROTECT THEM?

Trademarks are graphic signs represented by words, names, drawings, letters, numbers and colors in different combinations that help consumers in their choice of the preferred product/ services and their origins (manufacturer / service provider).

The trademark is like the civil name of the product, and should not be confused with the trade name of the company, which corresponds to the name of the legal person.

To make it easier for consumers to choose the products of their preference, trademarks should be:

- Different from competitors’ trademarks;

- Easy to memorize;

- Easy to pronounce;

- Fancy Words –and should not be used as a common, descriptive terms or radicals, which cannot be registered, and exclusively employed to distinguish the product of service.

- The brand also constitutes an intangible asset of the company, subject to continuous valuation over time with the advantage of being indestructible in comparison to material assets such as buildings and machines, perishable and devalued over time, and may be worth more than the same.

EXCLUSIVE USE of the trademark results from its registration by the INPI (National Institute of Industrial Property), constituting private industrial property rights with ten-year validity, renewable as long as it will be used.


TRADEMARK MAINTENANCE, DEFENSE AND CORRECT USE


1) Trademarks should be printed with characters different from other words and should have distinctive graphic forms.

2) Trademark property can be identified by the use of the registered trademark symbol ®.

3) The trademark ® generates a property title and this status must be advertised to ward off abusive users and characterize counterfeiting, as bad faith practices, which should be used on product labels and tags.
4) The brand (First Name) must identify a product by its common name at least initially in advertising and commercial material and ALWAYS on labels and tags. Ex: Steel Sponge - BOM BRIL. / Formica plastic mine.

5) The trademark does not have a grammatical function, having therefore invariable form. It does not undergo inflexions, translations, plural, or verb forms. The trademark must be reproduced exactly in accordance with the Registration Certificate.

Examples:

WRONG:

"Come and Xerocar your copies" or "In the heat take your Brahmas".

CORRECT:

"Come and take Xerox opium" or "In the heat take Brahma beers"

6) The trademark property right may be extinguished by forfeiture if there is no effective use in market scale for five years. The trademark may also lose its enforceability (exclusive use) by incorrect use, by becoming synonymous with the product (common name), especially by mistakes in advertising and use. Some famous trademarks have undergone such process in Brazil, for instance Frigidaire, Linoleum, Yo-Yo, and Macacão.

7) The trademark may be used only by the company holding the registration, or by licensees and assignees of the same. Said legal acts must be registered with the INPI to be effective against third parties.

8) Reference to third-party trademarks in scientific or historical publications, as well as in the identification of service activities, without competitive or commercial nature, do not constitute acts of unfair competition.

9) The abusive exercise of the trademark right, in addition to being able to establish an act of unfair competition in the private sphere, may cause violation of the free competition, of public interest as foreseen in the Anti Trust Law, as matter to be judged by the Administrative Council of Economic Defense CADE.

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