IP Due Diligence in Brazil: Partner or Target Checklist
Buying or partnering with a Brazilian company? Learn what to verify on trademarks, patents, software and copyright before you sign the deal.
10/10/20267 min read
A foreign group signs the purchase of a Brazilian software company. Months later, the team discovers that the brand the company sells under is registered in the founder’s personal name, that the main product was written by a freelancer who never signed an assignment, and that a competitor has a nullity action pending against the company’s best-known trademark. None of this appeared in the pitch deck. All of it was visible in public records and contracts that nobody checked.
This is the risk that IP due diligence exists to remove. In Brazil, many of the facts that decide whether intellectual property is really worth what the seller says can be verified before closing, in INPI records and in the contracts behind each asset. This guide explains what to check, in what order, and what the Brazilian statutes say about each point.
IP checklist for foreign companies entering Brazil
Why IP due diligence works differently in Brazil
Three rules shape the whole exercise.
First, trademark rights exist through registration. Under art. 129 of the Industrial Property Law (Lei 9.279/96), ownership of a trademark is acquired by the registration validly issued by INPI. So the owner named in the INPI record, not the company that uses the brand every day, holds the right.
Second, copyright and software rights exist without any registration. Lei 9.610/98 (art. 18) and Lei 9.609/98 (art. 2, §3) both say protection does not depend on registration. A software company can own valuable code that appears in no public database, and a registered work does not prove that the registrant owns it. For these assets, the contracts are the evidence.
Third, a transfer or license only binds third parties after INPI publishes it. Assignments are annotated by INPI (art. 136), and annotations take effect against third parties from the date of publication (art. 137). A trademark license must be recorded at INPI to produce effects against third parties (art. 140).
Step 1: Confirm who owns each trademark
Start with a search of INPI’s trademark database for every brand the target uses, including logos and product names. For each one, record:
The registered owner. It should be the company you are buying or partnering with. If it is a founder, a former partner or a related entity, the asset is not in the company, and you need an assignment before closing.
The status. A pending application is not a registration. Check whether it is still alive, has been granted, or has been archived or rejected.
The term. A registration lasts 10 years from grant (art. 133). Check the renewal date, because an expired registration extinguishes the right (art. 142).
The classes. Confirm the registration covers the products and services the business actually sells, in the classes that matter for your plans.
trademark registration in Brazil, step-by-step guide
Step 2: Look for attacks against the registration
A trademark can look solid on the record and still be vulnerable. Check for these.
Opposition and administrative nullity. Anyone with a legitimate interest can start an administrative nullity proceeding within 180 days of the registration certificate (art. 169). A registration granted recently may still be inside that window.
Judicial nullity. The action to declare nullity of a registration prescribes in 5 years from grant (art. 174). A mark granted less than five years ago is still exposed to a court challenge, for example on bad-faith grounds.
bad-faith trademark registration in Brazil and how to challenge it
Cancellation for non-use. A registration can lapse if, after 5 years from grant, the mark was not used in Brazil or its use was interrupted for more than 5 consecutive years (art. 143). A mark that sits unused on a portfolio list may be worth much less than it appears.
trademark cancellation for non-use in Brazil
Also search the federal and state court records for infringement or nullity actions involving the target’s marks. INPI records show administrative disputes, but a court case may not appear there.
Step 3: Check the chain of title for every transfer
Many portfolios were built through assignments: from founders to the company, from a prior business to a new one, from an agency to a client. Each link matters.
Annotation at INPI. An assignment only binds third parties after INPI annotates and publishes it (arts. 136 and 137). If the chain has an unrecorded link, the INPI record may still show the previous owner.
The scope of the assignment. For trademarks, art. 135 requires an assignment to cover all registrations and applications in the assignor’s name for identical or similar marks covering identical, similar or related goods and services. Assignments that skip some of them can lead to cancellation of the ones left out.
Licenses. If third parties use the marks under license, ask for the contracts and check whether they were recorded at INPI (art. 140). An unrecorded license does not bind third parties, although recordal is not needed to prove use (art. 140, §2).
Step 4: Patents and technology
For patents and pending applications, check:
Owner and inventors. Does the owner on the INPI record match the target company?
Annual fees. Patent owners must pay annual fees (art. 84). An application or patent shelved for missing payment can be restored on request within 3 months of notification of the shelving (art. 87), so ask for the payment history.
Transfers. INPI regulates patent ownership transfers by Portaria/INPI/DIRPA nº 20/2024. The request is filed electronically, and foreign documents need an apostille or consular legalization, plus a simple translation. Confirm every assignment in the chain has been filed and annotated.
Vulnerability to challenge. An administrative nullity request can be filed within 6 months of grant (art. 51), and a court action can be brought at any time during the patent’s term (art. 56).
protecting inventions and patents in Brazil
Step 5: Software and copyright, where contracts decide
Since there is no registry to rely on, this is where most hidden problems sit.
Who wrote the code? Under art. 4 of Lei 9.609/98, unless the parties agreed otherwise, software developed during an employment or service contract belongs to the employer or the client when development was the purpose of the contract, or was part of the employee’s or contractor’s duties. That is a helpful default, but it does not replace a signed agreement, and it does not cover work outside the scope of the engagement. Ask for the employment and development contracts of everyone who built the core product.
What about logos, websites, content and design? These are copyright works, and art. 49 of Lei 9.610/98 is strict. Total and definitive transfer requires a written contract. Without a written stipulation, the maximum term is five years. An assignment is valid only for the country where the contract was signed, unless it says otherwise, and only for forms of use that existed when the contract was signed. When the contract does not specify, it is interpreted restrictively. Art. 50 requires the assignment to be in writing and to state its object and the conditions of time, place and price.
In practice, a logo made by an agency under a vague contract may not belong to the company that has used it for ten years.
Optional registration. Software may be registered at INPI at the owner’s discretion (Lei 9.609/98, art. 3). A certificate is useful evidence, but not proof of ownership, and its absence does not mean the target has no rights.
Third-party and open-source code. Ask for a list of licensed components and the licenses that govern them.
who owns what an employee invents in Brazil
Step 6: Domain names, accounts and the rest
Check that the .com.br domains and social media accounts are registered to the company, not to the founder, an employee or an agency. This is a quick check, and the assets are often the first that a new owner needs to control.
Share deal or asset deal: what changes
In a share purchase, the company keeps its IP, so you inherit the portfolio exactly as it is, including its defects. Due diligence tells you what you are inheriting and which warranties and price adjustments to ask for.
In an asset purchase, the IP is transferred by assignment. Every assignment must be annotated at INPI to bind third parties (arts. 136 and 137), and for trademarks the scope rule in art. 135 applies. Plan the closing so that the assignments are signed, filed and followed up as part of the deal.
For a distributor, license or joint venture, the same checks apply to the assets the partner will use or contribute, and the contract should state who owns what is created during the relationship.
Checklist
Every brand is registered at INPI in the right owner’s name and in the right classes.
No pending opposition, nullity or non-use claims, administrative or judicial.
Renewal dates and patent annual fees are up to date.
Each assignment and license is signed, complete, and annotated or recorded at INPI.
Written contracts with every employee, freelancer and agency that created code, designs or content.
Domains and accounts are registered to the company.
FAQ
What is IP due diligence in Brazil?
It is a review of a company’s trademarks, patents, software, copyright, domains and IP contracts to confirm who owns them, whether they are valid and enforceable, and whether any claims or restrictions affect their value. It is usually done before an acquisition, joint venture, investment or exclusive distribution agreement.
Can I verify trademark ownership myself?
You can search INPI’s public database for the owner, status and term. Interpreting the record, spotting gaps in the chain of title and checking court records usually needs a local lawyer.
Is a trademark transfer valid if INPI has not published it yet?
Between the parties, the assignment contract can be valid. Against third parties, the annotation produces effects only from its publication (art. 137), so an unpublished transfer leaves a gap that should be closed before relying on the asset.
Does software need to be registered at INPI to be protected?
No. Protection does not depend on registration (Lei 9.609/98, art. 2, §3). Registration is optional and works as supporting evidence.
What if the founder personally owns the company’s brand?
Require an assignment from the founder to the company, signed and annotated at INPI, as a condition for closing.
How long does the review take?
It depends on the size of the portfolio and how quickly the target delivers contracts and records. A small portfolio can be reviewed in days. Larger ones take longer.
If you are planning to acquire, invest in or partner with a Brazilian company, an IP review before signing can change the price, the structure and the conditions of the deal. Reis Araujo Advogados reviews trademark, patent, software and copyright portfolios for foreign companies and works as a Brazilian correspondent for international IP firms. Contact our team contato@reisaraujo.com.br to discuss your transaction.
