The Brazilian Patent and Trademark Office has recently published Ordinance No. 15, of June 3, 2025, which amends Ordinance No. 08, of January 17, 2022 and brings in specific provisions on secondary meaning.

1. What is "secondary meaning"?
The concept of "secondary meaning" refers to the situation in which a trademark that was not sufficiently distinct at first (i.e., could not identify, by itself, the origin of a product or service) is recognized by consumers as an exclusive sign of the owner, due to continuous and intense use in the market.
2. When to apply for recognition of distinctiveness (secondary meaning)?
The new ordinance outlines five specific moments (by means of an express petition) in which a request can be made for the examination of secondary meaning due to use:
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At the time the trademark application is filed.
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Within 60 days following the publication of the trademark application.
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In the Appeal against the rejection of the trademark application due to lack of distinctiveness.
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In the Reply to an Opposition based on lack of distinctiveness.
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In the Reply to an Administrative Nullity Action based on lack of distinctiveness.
Attention: for trademarks applications under analysis or trademarks already registered that are being challenged due to lack of distinctiveness on the date of publication of the ordinance, there is an extraordinary term of 12 months (from the moment the ordinance comes into force, i.e. November 28th, 2025) to request the examination, even outside the above moments. This extraordinary term does not suspend the normal progress of the processes.
3. How is the procedure?
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The owner of the trademark application/registration must submit a formal application within the deadlines and moments indicated above.
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After the request, it is necessary to present supporting documentation, within 60 days, demonstrating:
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Substantially continuous use of the trademark in the three years prior to the application.
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That relevant portion of consumers recognize the sign as the applicant’s exclusive trademark.
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The BPTO will analyze the documentation and may request clarifications or additional documents, which must be submitted within 60 days.
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It is possible to file an appeal against the BPTO's decision on secondary meaning.
4. Who should be aware of this new ordinance?
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Owners of trademarks that do not have inherent distinctiveness (e.g., descriptive, generic or commonly used trademarks) and that wish to guarantee or maintain their registration.
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Companies with applications for registration in progress that have been challenged or rejected based on lack of distinctiveness.
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Owners of trademarks already registered that are being subject to administrative nullity actions due to lack of distinctiveness.
5. Other relevant points and deadlines
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The request for an examination of secondary meaning can only be made once per administrative proceeding.
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Documentation can be supplemented within 60 days after the initial protocol.
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Proof should focus on continued use and recognition by the public, and it is essential to gather robust evidence (e.g., market research, advertising campaigns, sales volume, etc.).

It is essential that trademark owners and applicants be aware of the above deadlines and the need for robust documentation to guarantee their rights.
Our Intellectual Property team is available to help you if you have any questions.