Non-Traditional Trademarks in Brazil: What Foreign Companies Get Wrong Before They Even File
Brazilian law only protects trademarks that are visually perceptible. Learn which non-traditional marks INPI accepts in 2026, including position marks, and which ones still have no legal protection.
Laila Reis Araujo
6/25/20264 min read
Non-Traditional Trademarks in Brazil: What Foreign Companies Get Wrong Before They Even File
A company is preparing to enter the Brazilian market. Its brand identity is built on more than just a name and a logo: a signature sound that plays at the end of every ad, a packaging color that consumers recognize instantly, maybe even the distinctive shape of a bottle. All of it is registered as a trademark back home. The assumption is simple: if the USPTO or EUIPO accepted it, INPI will too.
That assumption is wrong, and it can leave a real gap in brand protection right at the moment a company starts operating in Brazil.
The legal reason: trademarks here must be visually perceptible
Brazilian trademark law, the Industrial Property Law (Law No. 9,279/1996), sets the boundary in a single sentence in Article 122: marks eligible for registration are distinctive signs that are visually perceptible, as long as they do not fall under a legal prohibition.
That phrase, visually perceptible, is doing a lot of work. INPI has consistently interpreted it literally: if a sign cannot be seen, it cannot be registered as a trademark in Brazil, no matter how distinctive or commercially valuable it is. This puts Brazil in a more restrictive position than jurisdictions that have moved toward broader, sense-neutral definitions of what a trademark can be.
What cannot be registered as a trademark in Brazil
Several categories of non-traditional marks that are accepted in other major jurisdictions have no path to registration under current Brazilian law, because they fail the visual perceptibility test:
Sound marks. A sonic logo, jingle, or audio signature cannot be registered as a trademark in Brazil, regardless of how distinctive it has become elsewhere. Other countries have granted protection to sounds as source identifiers, including a well-known film studio's lion roar and a major airline's audio chime, both registered abroad as sound marks. None of that translates into trademark protection in Brazil.
Scent and taste marks. Olfactory and gustatory marks face the same wall. A signature fragrance used in retail environments, for instance, has no trademark path here, even if it has acquired protection in jurisdictions with broader statutory definitions.
Holograms, gestures, and pure motion marks. Marks based exclusively on movement or holographic effect, without an underlying visual representation that can be fixed and examined, also fall outside the current legal framework.
What can be registered, and where the real opportunities are
The picture is not entirely closed. Brazilian law and INPI practice do allow protection for several categories that brand owners often assume, incorrectly, are off the table:
Three-dimensional marks. The shape of a product or its packaging can be registered as a trademark, provided it is sufficiently distinctive and not merely a technical or functional shape needed to make the product work. This is the correct route for protecting a bottle shape, a container, or a product silhouette.
Position marks. Since INPI Ordinance No. 37/2021 took effect, Brazil formally recognizes position marks, meaning a specific element placed in a fixed, recognizable spot on a product, such as a stripe positioned in a particular location on footwear or a tag placed consistently on a specific seam. This was a meaningful expansion and remains underused by foreign applicants who are not aware it exists.
Color combinations, within limits. A single isolated color is very difficult to register on its own in Brazil. INPI's practice still favors combinations of colors applied in a specific, graphically represented arrangement, registered as a figurative or mixed mark, rather than a color claimed in the abstract. A distinctive color scheme applied to packaging, presented as part of a visual composition, has a real path to protection. A single Pantone code claimed alone generally does not.
Trade dress, through a different legal tool. The overall visual impression created by a product's packaging, store layout, or presentation, what is commonly called trade dress, is not a standalone trademark category under Brazilian statute. But it is not unprotected either. Brazilian courts recognize trade dress claims under unfair competition rules (Article 195 of the same Industrial Property Law) and under general civil liability principles, independent of any trademark registration. This is a different legal strategy, built on evidence of market recognition and bad-faith imitation, rather than a registration certificate.
What this means in practice for a company entering Brazil
The practical takeaway is not that non-traditional brand assets are worthless in Brazil. It is that each one needs the right legal tool, and that tool is rarely the same one used abroad.
Before entering the Brazilian market, it is worth mapping every non-traditional element of a brand identity, sound, scent, color, shape, packaging layout, against what Brazilian law actually allows, rather than assuming that a foreign registration certificate will simply carry over. In most cases, the answer points to one of three paths: a three-dimensional or position mark filing through INPI, a figurative mark built around a specific color arrangement, or a trade dress and unfair competition strategy built before any conflict arises, not after.
It is also worth noting that this gap between Brazilian law and broader international practice has drawn consistent academic and professional criticism for years, on the grounds that a strictly visual definition sits awkwardly with Brazil's own international commitments on intellectual property. No legislative change has been approved to date, so the current framework described above is what applies in practice.
Plan the brand protection strategy before launch, not after
A trademark registration certificate from another jurisdiction is a strong starting point, but it does not automatically extend to Brazil, and for non-traditional marks specifically, it may not extend at all under the same legal theory. Getting this mapped correctly before entering the market avoids the worse scenario: discovering the gap only after a competitor or copycat has already moved in.
If your company is preparing to enter the Brazilian market and wants to know exactly how your brand assets, traditional and non-traditional, can be protected here, Reis Araujo Advogados can help you build that strategy before you launch. Contact our team to get started.
