Industrial Design – Further information

In Brazil, the Industrial Design is protected through registration, rather than through patent, as in other countries.

The registration of Industrial Design protects the external ornamental shape of a  an object or a design pattern that can be applied onto a surface or object. This means the registration protects the appearance that differentiates the product from the others.

The following are not protected by the registration of industrial design: functionalities, practical advantages, materials or forms of manufacturing.

The Brazilian laws and regulations provide for the protection of up to 20 objects in one single application, as long as they are variations of the same object  and share the same distinctive predominant characteristics, maintaining the visual identity. For example: an office chair and the same chair with a cupholder.

It is important to remember that the application is only a lawful expectation. This means that it will be examined and the applicant shall monitor it until the potential issuance of the title.

Once it is granted by the Government, the industrial design registration is valid in the national territory and provides to the holder the right, during the term, to remove third parties from manufacturing, marketing, importing, using, or selling the protected matter without prior authorization. The term is of 10 (ten) years of the date of filing, extendable for another three successive five-year periods. It is important to note that, during the 5th year of the term, it is necessary to pay the five–year fee for maintenance, i.e., the 2nd Five-Year Period, pursuant to articles 119 and 120 of the LPI (Brazilian IP Law) – Law No. 9,279 of 1996).

Novelty

In order to be deemed new, the industrial design must not be encompassed in the state of the art, formed by everything accessible to the public in any means before the date of filing in Brazil or abroad. The Brazilian law provides for a 180-day “period of grace” of the first disclosure. This means that, in Brazil, it is possible to submit a product already disclosed within this term, as long as the design has been disclosed by the very author or a person authorized thereby. The existence of this possibility in the Brazilian law aims at enabling the registration of academic works and other works requiring prior exhibition in fairs, events, seminars, or congresses.

Nevertheless, it is important to highlight that the prior disclosure can prevent the obtaining of a corresponding registration abroad, because not all countries admit prior publication of the object of registration. This is why it is always advisable to file the application before any disclosure

Originality

The industrial design is deemed original when it results in a distinct visual configuration when compared to previous known objects (or patterns).

Being a type of industrial manufacturing

The object (or pattern) claimed must be liable of being reproduced industrially in all its details.

In Brazil, portions of an object that do not exist independently  can not be protected. For example, applications claiming only the head of a toothbrush are not accepted, considering  with it is not detachable from the handle. On the other hand, it would be fully possible to apply for an automobile tire, since it is an independent object, likely to be manufactured separately.

Any individual or legal entity can apply for protection. However, foreign persons or companies applying must have a Brazilian legal representative. We ensure to the author the right to obtain the Industrial Design Registration or even to the author’s heirs or successors, assignee, or the person who the law or the employment or service provision contract establishes as holder. If the applicant is not the author, it is not necessary to submit the document for assignment of equity rights. However, it is important that the applicant has the assignment document for purposes of evidence, if needed. The ownership can also be claimed by more than one person, as long as the required information is submitted for all persons defined as holders.