INPI Brazil regulates acquired distinctiveness with new administrative rule No. 15/2025

To register a trademark with the BPTO, according to the Industrial Property Law (No. 9,279/1996), a fundamental requirement is distinctiveness. This means that the trademark must be capable of identifying a product or service as originating from its owner, distinguishing it from the product itself and from competitors.

Thus, as a general rule, a trademark cannot be composed solely of textual elements, images, or shapes that are generic or descriptive of the product or service.

However, in some cases, a generic or descriptive element may become so closely linked to a company’s product or service that it is sufficient to differentiate it from competitors. In these situations, when the sign ceases to be generic and is understood by consumers as an element identifying a specific product, the phenomenon of acquired distinctiveness occurs.

What changes?

Although acquired distinctiveness is well known in trademark studies, there was no regulatory provision detailing how its recognition would occur at the BPTO, which is exactly what Administrative Resolution (Portaria) No. 15/2025 establishes.

The regulation defines the concept and sets out how an application should be submitted to the BPTO for examination of the trademark’s acquired distinctiveness, specifying procedures, deadlines, and necessary documents.

Therefore, applicants who believe their trademark application falls under this category should follow this procedure, along with other cases provided for in the regulation.

When will the change take effect?

Administrative Resolution (Portaria) No. 15/2025 will come into effect on November 28, 2025, and from that date forward, the new rule will be applied by the BPTO.

How was this regulation developed?

In pursuit of a trademark system that better meets the needs and demands of users, the BPTO conducted an extensive debate on acquired distinctiveness with stakeholders and subsequently produced this regulation.

The topic was subject to a public consultation held between October 2024 and January 2025. Additionally, acquired distinctiveness was discussed in several meetings with users as part of the “Permanent Dialogue with Interested Parties” project. The objective of this project is to establish a systematic dialogue with various stakeholder groups to support the BPTO’s decision-making process.

Do you own a trademark in Brazil made up of generic or descriptive elements? Starting November 28, 2025, you may apply for registration based on acquired distinctiveness under INPI’s new Rule No. 15/2025. At H&A, we can guide you through the process and help prepare the required documentation.