Newsletter Edition 45 - March 2023


ABPI sent official letters in defense of legal certainty to the Brazilian government

On March 16th, ABPI sent two official letters to Brazilian government bodies defending constitutionality and legal certainty under trademark and patent legislation terms. In the first letter, addressed to Vice-President Geraldo Alckmin, ABPI and ABAPI drew attention to the need to adapt the two years for granting a patent in Brazil, which contrasted with the letter presented by the GTPI (Working Group on Industrial Property) and ABIA (Brazilian Interdisciplinary AIDS Association). The document clarified what a patent is and the constitutional right of the holder to exploit their invention exclusively for a “reasonable period”. Additionally, it requested retroactive compensation due to the delay in the analysis of exams carried out by the BPTO. The two entities defended the validity of the backlog reduction program undertaken by the institute and noted that the 24-month period for granting a patent is in harmony with the best practices and international treaties of which Brazil is a signatory. Finally, both associations claimed that legal certainty provided by a swift decision by the BPTO favors free competition.

Letter to MAP – In the document forwarded to the Ministry of Agriculture and Livestock, specifically within the scope of the Secretariat of Agricultural Defense, the Department of Inspection of Products of Animal Origin, and the General Coordination of Inspection, ABPI warned of the unconstitutionality of Circular Letter No. 2/2023/CGI/DIPOA/SDA/MAP. The letter required regulated agents to include informational text for consumers on product labels with expressions such as “gourmet,” “royale,” “speciale,” “gold,” “premium,” and “reserve,” among others.

ABPI warns that “despite the MAP’s concern for consumer protection,” the proposed regulation is reckless and contrary to the Law, “generating legal uncertainty and an excessive burden to regulated entities.” The association also highlights that the MAP Letter “aims at restricting the use of trademarks whose registrations were legally granted by the BPTO according to art. 129 of the Brazilian IPL.”

Thus, ABPI argues that by requiring economic agents to comply with the provisions of Circular Letter No. 2/2023/CGI/DIPOA/SDA/MAP, the MAP is encroaching on the competencies of the BPTO.

MAP response – In response to the letter sent by ABPI on March 16th regarding Circular Letter No. 2/2023/CGI/DIPOA/SDA/MAP, the Ministry of Agriculture and Livestock (MAP) has promptly replied. The Federal Agricultural Inspector and General Coordinator of Inspection (CGI/DIPOA), Douglas Haas de Oliveira, has stated that the responsibility for regulating the labeling of products of animal origin rests with the MAP, specifically the DIPOA, as provided for in Law No. 1283/1950. The first regulation occurred through Decree No. 30691/1052 and its amendments.

In the document, the auditor argued that the issued circular letter does not contain any determination or regulation on procedures since these procedures and determinations already exist in previous laws and decrees. The circular letter has the unique goal of harmonizing the actions of inspection teams with the establishments registered in the DIPOA.

The auditor also clarified that there is no legal or hierarchical conflict between the two norms, as they complement each other. While the BPTO is responsible for analyzing and approving trademark registrations, the use of trademarks in animal products is regulated by another law and its respective decree.

Finally, the auditor emphasized that it does not impede the use of these expressions or trademarks as long as there is an indication on the label presenting their differential to consumers. Therefore, it will allow consumers to make an informed choice to pay higher values for products with a differential, even if only in the layout or presentation of the labeling.

To read the letter sent to the MDIC, click here.

To read the letter sent to the Ministry of Agriculture and Livestock, click here.