ABPI sends official letters to Ministries and gets a response
On March 16, 2023, ABPI sent letters to the Ministry of Development, Industry, Commerce and Services (MDIC) and the Ministry of Agriculture and Livestock (MAP) in defense of constitutionality and legal certainty under the terms of trademark and patent legislation . The MAP has already forwarded a response. Follow the case and its repercussions.
In the letter addressed to the Honorable Vice-President of the Republic and Minister of the Ministry of Development, Industry, Commerce and Services (MDIC), Geraldo Alckmin, ABPI, together with ABAPI, draws attention to the need to adjust the two-year period for the granting of a patent in the country, in opposition to the letter presented by the GTPI (Working Group on Industrial Property) and ABIA (Brazilian Interdisciplinary AIDS Association).
In the explanatory memorandum, ABPI and ABAPI clarify what a patent is and the constitutional right of the holder to exploit his invention exclusively, for a “reasonable period”, and also to request retroactive compensation due to the delay in the analysis of the exams carried out by the INPI . In the letter, the two entities defend the validity of the backlog reduction program, undertaken by the autarchy, and note that the 24-month period for granting a patent is in harmony with the best practices and international treaties, of which, by the way, , Brazil is a signatory. Finally, they claim, the legal certainty provided by a swift decision by the INPI favors free competition.
The second letter, sent to the Ministry of Agriculture and Livestock – 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 warns of the unconstitutionality of Circular Letter No. 2/2023/CGI/DIPOA/SDA/MAP, which requires regulated agents to include expressions such as “gourmet”, “royale”, “especiale”, “ouro”, “premium” and “reservation” on product labels , among others, with the inclusion of informative text for the consumer.
The ABPI warns, “despite the MAP’s concern for consumer protection”, that the proposed regulation is reckless and contrary to the Law, “generating legal uncertainty and excessive burden to regulated entities”. The MAP letter, he points out, “aims at restricting the use of trademarks whose registrations were legally granted by the INPI pursuant to art. 129 of the LPI”.
Thus, the ABPI argues that, by requiring economic agents to comply with the provisions of Circular Letter No. 2/2023/CGI/DIPOA/SDA/MAP, the MAP ends up entering a competency belonging to the INPI.
On Friday, March 17th, we received a response from the Ministry of Agriculture and Livestock which briefly says that Circular Letter No. 2/2023/CGI/DIPOA does not bring any determination or regulation on procedures, since these procedures and determinations already exist in previous Laws and Decrees, with the sole purpose of harmonizing the actions of inspection teams with establishments registered with DIPOA.
The Ministry explains in its answer that “there is no legal conflict, nor any conflict regarding the hierarchy of norms since there is complementation of the subject, where the INPI is responsible for all part of the analysis for approval and registration of a trademark. However, the use in products of animal origin is regulated by another law and its decree.”
They also reinforced that “there is no impediment to the use of these expressions or brands, as long as there is a presentation of their differential to the consumer indicated on the label, allowing their choice to pay higher values in products that have differentiation, even if only in the layout or label presentation.”
And finally, the MAP explains that the Ministry of Justice and the consumer protection bodies have already been notified for the purpose of guiding the possible dealings of that body.
Read the full response from the Ministry of Agriculture and Livestock below:
Good morning,
In view of the document presented, we present some considerations.
MAPA is responsible for regulating the labeling of products of animal origin, and therefore DIPOA, as provided for in Law No. 1283/1950, with the first regulation occurring through Decree No. 30691/1052 and its amendments.
Law No. 1.283/1950
Art 9 The Executive power of the Union will issue, within a maximum period of one hundred and eighty (180) days, counted from the date of publication of this law, the regulation or regulations and complementary acts on industrial and sanitary inspection of the establishments referred to in subparagraph a of art. 4th quoted.
1st The regulation referred to in this device will cover:
…
h) registration of labels and brands;
Decree No. 30.691/1952
Art. 801. Any denomination, statement, word, design or inscription that conveys a false impression, provides an erroneous indication of the origin and quality of the products is prohibited, and this prohibition may be extended, at the discretion of D.I.P.O. A., to improper appellations.
- 1 Trademarks that infringe this article, although registered with the National Department of Industrial Property, may not, in the opinion of the D.I.P.O.A., be used.
- 2nd The National Department of Industrial Property, before registering any brand to be used in the labeling of products of animal origin, will request an opinion from the D.I.P.O.A. in order to comply with the provisions of this article.
During that period, the use of quality expressions was only allowed in those products whose Technical Regulation of Identity and Quality brought the conditions required for this purpose, as in the case of “top quality butter” or “extra butter” provided for in Ordinance No. 146/ 1996.
In this context, until the regulation was updated in 2020 by Decree nº 10.468/2020, the use of any expression of quality, not foreseen in technical regulations of quality and identity of products, even those registered with the INPI, was prohibited, and those that registered indicating their use in products of animal origin, should have prior approval by DIPOA.
Thus, trademarks that may have been registered before 2020, with an indication of use in products of animal origin, without the consent of DIPOA, were carried out irregularly and would require review by the INPI.
In 2020, precisely for the update with a view to allowing greater freedom to establishments registered with DIPOA and in compliance with the Economic Freedom Law, Law No. brands as long as they are duly proven and with controls that allow the identification of the differentiation given by the companies, guaranteeing consumer protection.
Decree No. 9.013/2017 and its amendment
Art. 446. The presence of expressions, brands, words, signs, denominations, symbols, emblems, illustrations or other graphic representations that may convey false, incorrect, insufficient information or that may, directly or indirectly, induce the consumer to misconception, error, confusion or deceit in relation to the true nature, composition, yield, origin, type, quality, quantity, validity, nutritional characteristics or way of using the product.
…
Art. 446-B. Quality expressions may appear on the label when corresponding specifications are established for a given product of animal origin in a specific technical regulation of identity and quality.
- 1st In the event of non-existence of quality specifications in specific regulation referred to in the caput and observing the provisions of art. 446, the indication of quality expressions on the label is optional, as long as they are followed by an informative text for the consumer to clarify the criteria used for its definition.
- 2nd The parameters or criteria used must be based on technical-scientific, measurable and auditable evidence, and must be described in the registration request.
- 3rd The veracity of the information provided on the label in accordance with the provisions of § 1 and § 2 before bodies defending consumer interests is the sole responsibility of the establishment.
Law No. 8.078/1990
Art. 31. The offer and presentation of products or services must ensure correct, clear, precise, ostensible information in Portuguese about their characteristics, qualities, quantity, composition, price, warranty, expiration dates and origin, among other data, as well as on the risks they present to the health and safety of consumers.
…
Art. 37. All misleading or abusive advertising is prohibited.
- 1 Any type of information or communication of an advertising nature, wholly or partially false, or, in any other way, even by omission, capable of misleading the consumer regarding the nature, characteristics, quality, quantity, properties, origin, price and any other data about products and services.
It is observed that the updating of the legislation allowed the sector to elaborate brands or lines of products that had some differential, with their presentation in products of animal origin, to the consumer, provided that with the necessary information for the knowledge and definition of the acquisition of these products.
The consumer has the right guaranteed in the legislation to know what he is buying and choose to pay or not for the differential indicated by the producing establishment, in addition to allowing his complaint when he feels harmed or deceived.
In view of the above, we reinforce that the issued document, Circular Letter No. 2/2023/CGI/DIPOA, does not bring any determination or regulation on procedures, since these procedures and determinations already exist in previous Laws and Decrees, being their objective exclusively to harmonize the actions of inspection teams with establishments registered with DIPOA.
We also understand that there is no legal conflict, nor any conflict regarding the hierarchy of norms since there is complementation of the subject, where the INPI is responsible for all part of the analysis for approval and registration of a trademark. However, the use in products of animal origin is regulated by another law and its decree.
We reinforce that there is no impediment to the use of these expressions or brands, as long as there is a presentation of their differential to the consumer indicated on the label, allowing their choice to pay higher values for products that have differentiation, even if only in the layout or presentation of the label. .
The Ministry of Justice and the consumer protection bodies have already been notified for the purpose of guiding the eventual dealings of that body.
