Position marks available for registration in Brazil as of october 2021

After public consultation, the Brazilian Patent and Trademark Office (BPTO) issued Ordinance No. 37/2021, published in the Electronic Official Bulletin No. 2646, of September 21, 2021, authorizing the registration of position marks as of October 1, 2021. 
 
According to the BPTO’s definition in the ordinance, position marks eligible to registration are those formed by a “distinctive ensemble capable of identifying products or services and distinguishing them from others identical, similar or akin, provided that: (i) it is formed by the application of a sign in a singular and specific position on a given support; and (ii) the application of the sign in said position of the support can be dissociated from technical or functional effect“. In other words, it is the recognition, as a truly distinctive sign, of the position of a specific element in a determined spot of a product that neither results from a technical necessity nor creates a product improvement.
 
The BPTO also informed that pending trademark applications that fit as referring to position marks may be reclassified within a 90 (ninety) day term counted from October 1, 2021. Furthermore, the online application system for position marks will not be available immediately. For now, applications under this format shall be filed using the electronic forms for tridimensional trademarks, with express indication that they refer to position marks.
 
We are available to provide any additional information on the above.