Trademark Cancellation for Non-Use in Brazil: The 5-Year Rule Explained
A Brazilian trademark not used within 5 years of grant can be cancelled, and owners have only 60 days to prove use. What foreign companies need to know about non-use cancellation in Brazil.
Laila Reis Araujo
6/12/20265 min read
Your company registered its trademark in Brazil years ago. The market entry was postponed, the registration sat in the portfolio, and the renewal fees were paid on time. Then a notification arrives: a third party has filed a non-use cancellation action against your mark, and you have 60 days to prove use in Brazil or lose the registration entirely.
This scenario is common among foreign companies, and it catches many of them unprepared. Brazil grants trademark registrations without any proof of use, which makes defensive filings easy. But keeping that registration alive is a different matter. This article explains how non-use cancellation works in Brazil, how to defend against it, and how it can also be used strategically to clear a path for your own brand.
The legal rule: use it within five years or risk losing it
Under Article 143 of the Brazilian Industrial Property Law, a trademark registration becomes vulnerable to cancellation, known in Brazil as caducidade or forfeiture, when any person with a legitimate interest requests it and, at the date of the request:
The use of the mark has not started in Brazil within five years from the grant of the registration; or the use of the mark has been interrupted for more than five consecutive years; or, within that same period, the mark has been used in a modified form that alters its original distinctive character as registered.
Three points in this rule deserve attention from foreign trademark owners.
First, the five-year clock runs from the grant of the registration, not from the filing date. A company that filed in Brazil early as part of a global strategy has a protected window, but that window has a defined end.
Second, use must occur in Brazil. Sales in other countries, international websites without commercialization directed at the Brazilian market, and global brand recognition do not count. What counts is genuine commercial use of the mark in the Brazilian market for the goods or services covered by the registration.
Third, the cancellation is not automatic. The National Institute of Industrial Property (INPI) does not monitor use or cancel registrations on its own initiative. A third party with legitimate interest must file the request and pay the official fee. In practice, that third party is usually a company whose own trademark application was blocked by your registration.
You have 60 days, and the burden of proof is yours
Once a non-use cancellation request is filed and admitted, INPI notifies the registration owner, who has 60 days from the publication to respond. The burden of proof falls entirely on the owner: it is the registrant who must demonstrate use of the mark in Brazil during the relevant five-year period, or justify the non-use based on legitimate reasons.
Acceptable evidence of use typically includes invoices (notas fiscais) showing sales of the products or services in Brazil, product packaging and labels displaying the mark, advertising and marketing materials directed at the Brazilian market, distribution or licensing agreements with Brazilian partners, and import documentation showing the branded products entering the country.
Two practical aspects matter for foreign companies. Use by a licensee or authorized distributor in Brazil counts as use by the owner, which means a foreign company operating through local partners can rely on their commercial activity. And the evidence must be dated: documents need to show use within the investigation period, not before it and not after the cancellation request was filed.
If the owner cannot prove use, the law admits justification based on legitimate reasons, such as regulatory barriers that legally prevented commercialization. The threshold is high. Commercial choices, internal restructuring, or simply waiting for better market conditions do not qualify.
Use must match the registration
Article 144 of the Industrial Property Law adds a requirement that is frequently overlooked: the use must cover the goods or services listed in the registration certificate. If the mark was registered for a broad list but used only for part of it, the registration can be partially cancelled for the goods or services that are not similar or related to those for which use was proven.
For international IP counsel managing Brazilian portfolios, this has a direct consequence: broad defensive specifications offer less long-term security in Brazil than they may appear to. After five years, the unused portions of the specification become exposed.
The other side: non-use cancellation as a clearing strategy
Non-use cancellation is not only a risk to manage. It is also one of the most effective tools available to foreign companies entering Brazil.
Because Brazil operates a first-to-file system, it is common for a market entrant to discover that its brand is already registered by a local company. In many of these cases, the blocking registration is old and the mark has never been genuinely used. Filing a non-use cancellation action can extinguish the blocking registration and open the way for your own application.
The requirement of legitimate interest is generally satisfied by having a pending trademark application that was or would be blocked by the registration under attack. A typical strategy combines both steps: filing your own application in Brazil and, in parallel, requesting the cancellation of the obstacle.
This route is administrative, decided by INPI, and significantly faster and less expensive than judicial litigation. The decision can be appealed within INPI before becoming final.
Renewal is not protection against cancellation
A frequent misconception among foreign trademark owners is that paying renewal fees keeps the registration safe. It does not. Renewal and use are independent obligations under Brazilian law. You can read more about here: Trademark Renewal in Brazil. Brazil requires no proof of use at renewal, so a registration can be renewed indefinitely while remaining completely vulnerable to a non-use cancellation action. We covered the renewal rules and deadlines in our guide to trademark renewal in Brazil, and the two issues should be managed together in any portfolio review.
Practical recommendations for foreign companies
Before the five-year mark, evaluate each Brazilian registration in your portfolio honestly: is the mark in genuine use in Brazil, through your own operation, a licensee, or a distributor? If not, assess whether use can begin, whether the registration strategy should change, or whether the exposure is acceptable.
Keep dated evidence of use as a routine practice, not as a reaction to a cancellation request. Invoices, contracts with Brazilian partners, and marketing materials directed at Brazil should be archived systematically. When the 60-day deadline arrives, the companies that survive are the ones that already have the documents.
And if your entry into Brazil is blocked by a registration that appears dormant, investigate before negotiating. A non-use cancellation action may resolve in months what a purchase negotiation would resolve at a much higher cost.
How Reis Araujo Advogados can help
Reis Araujo Advogados advises foreign companies and international IP firms on trademark strategy in Brazil, including the defense of registrations against non-use cancellation actions, the preparation and filing of cancellation requests against blocking registrations, and portfolio audits to identify exposure before third parties do. If your company owns trademarks in Brazil or is planning to enter the Brazilian market, contact our team to review your position.
