Mark the position on the Right Trademark of the brazilian

Initially, it is noted that in the current context of the fierce competitive market, building a visual identity is solid, it has become essential for the differentiation of the products and the loyalty of our customers. In this scenario, the aesthetic and symbolic of the consumer goods began to play a strategic role in the practice of branding, requiring the legal protection of proportion to their importance.

In response to these developments the legal framework of the brazilian went on to acknowledge, express, the registration of the trademark for the position recognizing it as a form of stand-alone sign. This award aligns with the Brazilian guidelines have been consolidated in a foreign legal systems, where a specific position of a visual element on the product, it is treated as an asset of the industrial property subject of the rooms.

In response to these developments the legal framework of the brazilian went on to acknowledge, express, the registration of the mark on the positionand recognition as a form of stand-alone sign. This award aligns with the Brazilian guidelines have been consolidated in a foreign legal systems, where a specific position of a visual element on the product, it is treated as an asset of the industrial property subject of the rooms.

On the face of it, the position and represents, therefore, a new legal norm is relevant in the field of intellectual property, and to allow for the protection of the visual features that are applied in a certain place on the product, even though they do not change their form or function, you give them a symbolic value, distinctive and appealing in the market. This is a response to the legal complexity of the design of a contemporary, and in the constant search for the differentiation of the business environment.

The concept and the elements characteristic

From the perspective of the Right, trade mark, at the mark position can be regarded as a distinctive sign applied to a specific, fixed and unchanging, in a certain part of the physical medium, which is often the product itself or its packaging. Unlike most brands, names, figures or three-dimensional, and that it protects is not the signal, in and of itself, but the layout is peculiar, and is not functional in the context of the object.

In other words, the protection provided by the brand’s position is based on the combination of the strategic location of the signal, from this position, it possesses a distinctive character, and does not perform the role of technical or utilitarian. On the distinctiveness, in this case, it is apparent to the perception of the consumers with this setting to a source, the business of the product, turning the position of the element symbol.

In this respect, it is well-known for some examples of paradigmatic in the international arena, such as the sole of red in the shoes of the brand, christian Louboutin, which is applied exclusively in the lower part of the shoe; and the three stripes on the sides of the shoes and Adidas, whose repetition in a standardized and has become the visual identity of the brand name, or the sewn-on bow in the back pockets of your jeans-Levi’ss, an element which is recognized and is directly related to the origin of the product. For such signals, even in isolation, simple or a little dark theme, acquired distinctiveness, context-from its mounting in a location-invariant, and they are able to identify the product in the market and to differentiate your brand ahead of the competition.

As permitted by law and the requirements of the Brazilian

The consolidation of the regulation of the brand’s position in the brazilian legal system was made by means of the decree-INPI/PR 37/21¹, which entered into force on 13/9/21. The law represented a significant step forward in recognizing explicitly that the category of the brand name as a possible candidate for the record, setting forth the criteria that must be met at the time of the analysis, the technique of the application.

In accordance with the ordinance, to the registrability of the mark, the position requires that, on a cumulative basis, that is, the signal is applied to a particular position and to the particular product, the location of which does not possess the function of a technical or utilitarian, and it is, therefore, not related to any of the functional element. In addition, it is essential that the resulting configuration possesses a distinctive character long enough to allow the consumer to identify the origin of the business of the product by looking at the position of the signal.

The technical assessment carried out by the INPI (National Institute of Industrial Property demand is not only to give a detailed description of the mark and its application, but also for the presentation of graphical presentation of appropriate supporting documents showing the exact location of the signal. To do so, it is a requirement that a portion of the product to which the signal is inserted is highlighted with solid lines or shaded areas, as in the other parts of the object should be represented with dashed lines, in order to delineate clearly the scope of the protection sought.

This is a graphical representation fulfills a fundamental role, since it allows the examiner to assess with precision whether the brand name is associated with the position’s distinctive and unchanging, and in compliance with the parameters of the law. It is, therefore, a crucial step to ensure that your order is not to be confused with the marks, figures, or three-dimensional, and looked forward to the very nature of a brand’s position as an engine for visual differentiation in the market.

The difference between a trademark and brand name of three-dimensional

Even though the brand name and the brand name of three-dimensional to share the fact that they fit between the so-called signs of non-standard nature of the legal and protected elements differ substantially from one another in the context of the Right Parties. This distinction is essential in order to avoid overlaps, improper protection, and to delineate properly the subject matter of the request for registration with the INPI (National Institute of Industrial Property rights.

The brand is three-dimensional with respect to the shape of the plastic, or the volume of a product or its packaging, to the extent that this order, all by itself, is a distinctive feature and is not directly related to the technical requirements and functional. The protection is based on the set of qualities that can be viewed by the consumer as an element of the identifier of the source of business value. A classic example of this is in the shape of the bottle of the Coca-Cola company, of which the outline is acknowledged throughout the world.

On the other hand, is the brand name of the position, it does not protect the whole of the products, but the specific location of a certain way about it. The claim, therefore, is the use of a visual element such as color, symbol, drawing, or painting in the position of the invariant and non-functional, whose repetition, and the association constant of the brand name has become distinctive in the eyes of the consumer. The protection takes place on the grounds of the uniqueness of the position and the shape of the object in and of itself.

In this context, the position of the distinction of his character is essentially a two-dimensional, which is linked to the mounting space of the signal, while the three-dimensionality concerns the very structure of the body of the product. The distinction is purely theoretical, it has no practical impact at the time of submission of the request, the evidence of distinctiveness, and the determination of the scope of the rights conferred on it.

Thus, to understand the boundaries between these two categories, it is essential to not only have a correct legal classification of the sign, but it’s also a strategy that marcária effective, especially in the areas in which the design and appearance of the products, exert a decisive role in the choice of the customer.

Procedures for registration

In the process of registering a trademark in place in Brazil following the procedures generally applicable to the claims of a trademark with the INPI (Instituto Nacional da propriedade Industrial), but with the specific requirements that are related to the nature of the peculiar to this type of sign. For the correct compliance with this requirement is critical to the acceptance of the order; and the consolidation of the legal protection that you want.

First, the applicant must indicate in the application form to e – mode ‘trademark’position, distinguishing it from other categories, such as the word mark, figurative, mixed -, or three-dimensional. This initial training is critical, as it guides you through the technical examination of the mark in the light of the criteria of this kind.

In addition to this, the application must contain a graphical representation of the need of the product, showing clearly the exact location of the signal to be claimed. In accordance with the guidelines set forth by the PTO, in this representation, we must point out the area in which the mark is applied by means of solid lines or shaded areas, while the rest of the parts of the product must be shown with dotted lines, so as to avoid any ambiguity as to the object of protection. That taken care of the technical it aims to delimit the extent of the right of parties posed, making it clear that it’s not a matter of protection in the form of the product, however, the position of the signal on it.

Also, it is necessary to present a formal description in-depth, in which the applicant is to indicate the type of signal, its location, its distinctive features, and the way in which such a configuration, it is perceived by consumers as an indication of the origin of the business. If the signal does not own distinctiveness that is intrinsic, it is recommended that if the evidence of distinctiveness acquired (secondary meaning), in particular by means of statements, the use of a continuous and a recognized brand name in that setting.

During the technical examination, the pto may be able to formulate the requirements of the formal or substantive, including that related to the functionality of the signal is, for lack of distinctiveness, or the use of a position in the segment of the market that is involved. In such cases, it is the responsibility of the applicant to submit the answers-informed, and, if necessary, supporting documents, which explain the distinctive character of the mark in the position.

In the end, it is important to note that, just as in other types of marks, the registration of the trademark for the position, once it is granted, it gives the holder the right to the exclusive use in the whole of the national territory, for an initial term of ten years, renewable for successive periods of the same duration. It is, therefore, an important instrument for the consolidation of intangible assets and fixed assets and for the preservation of the visual identity of the brand in the face of the market.

Advantage and strategic conclusion

The possibility of the registration of the mark position, it represents a significant advance in the brazilian system for the protection of marcária, in particular, by expanding the scope of protection of distinctive signs, and adapt the organisation to the new realities of today’s marketplace, which is strongly based on the aesthetics, the symbolism and the visual experience for the customer.

From a strategic point of view, the position helps to solidify the visual elements that are as unique as the assets of intellectual property, ensuring that the holder has the exclusivity on the settings that you are not limited to, name, or logo, but they are incorporated in to the imagination of the consumer, by the means of the repetition of a constant, and the familiarity of the senses. This exclusive reinforce your branding, and contributes to the loyalty of the clients and puts the brand in a prominent location in front of the competition, especially in sectors that are stretched to the limit, or with products that are visually consistent.

In addition to this, the registration of a trademark can be a barrier to effective anti-unfair competition, and dilution of marcária, to protect the visual settings that could be easily settled by a third party is not permitted. Recognizing the value of the elements as seemingly simple as sewing a song, a color that’s applied in a specific place in the system of trade mark application shall concentrate on a more expansive wealth of design and visual communication in the business strategy.

It can be concluded, therefore, that it is the mark of a position to not only enrich the legal framework of intellectual property rights, but it also offers the companies with a powerful tool to protect your identity, marketing. Their use, however, demand planning, a legal notice, a clear definition of the brand strategy, and technical precision in the preparation of the application for registration. In an environment of increasing the valuation of intangible assets, and this is a feature that deserves special attention from the part of the operators, on the right, and the managers of the business, focused on innovation and brand-building strong and long-lasting.

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1 PORT_INPI_PR_37_2021.pdf
https://www.migalhas.com.br/depeso/428990/a-marca-de-posicao-no-direito-marcario-brasileiro