The Brazilian Patent and Trademark Office (BRPTO) published today Ordinance #15/2025, which regulates the possibility of proving acquired distinctiveness through use during the trademark registrability examination.

Contrary to what had been proposed during the public consultation phase, the request for analysis of secondary meaning may be submitted at five distinct stages: (i) at the time of filing the trademark application; (ii) within sixty (60) days of the publication of the application; (iii) when filing an appeal against the rejection of the application based on a lack of inherent distinctiveness; (iv) when responding to an opposition grounded in lack of inherent distinctiveness; or (v) when responding to an administrative nullity proceeding based on lack of inherent distinctiveness.

The regulation also establishes that the submitted documentation must demonstrate continuous use of the trademark during the three years preceding the request. Additionally, it must show that a relevant portion of the consumer public for the goods or services in question recognizes the sign as a trademark associated with its owner, capable of identifying and distinguishing the goods or services from those of other origins.

For trademark applications already in progress and subject to nullity proceedings based on lack of inherent distinctiveness, an extraordinary period of twelve (12) months will be granted, starting from the effective date of the ordinance, for the owners to request the examination of acquired distinctiveness.

The ordinance will come into force on November 28, 2025.

The full text of the ordinance is available on the BRPTO’s website, and a copy can be accessed here.

For more information, please contact: trademarks@lickslegal.com.