Disclaimer: the following information is provided for educational purposes only and does not constitute legal advice.

Do I need to seek intellectual property protection outside of the United States?

Patents and trademarks are territorial rights, meaning that you’ll need to obtain a patent or trademark in each jurisdiction in which you want patent or trademark protection. However, because the cost of obtaining intellectual property rights in multiple countries can quickly become prohibitive, it’s important to carefully consider, from a business perspective, where it makes sense to expend the resources to seek protection. Relevant considerations may include, but are not limited to, where you plan to do business, where your competitors are located, and where likely manufacturers of the product in question are located. Kellis IP can help you develop a comprehensive IP strategy for both domestic and international protection.

Should I seek intellectual property protection in Brazil?

The answer to that question depends on your business strategy.  But it's definitely worth considering intellectual property protection in Brazil, for at least the following reasons:

First, Brazil has a robust IP system. 

The National Institute of Industrial Property (INPI) grants patents and registers trademarks, industrial designs, geographical indications, software, and integrated circuit topographies.  Brazil participates in the three major industrial property treaties - the Patent Cooperation Treaty (which facilitates obtaining patent protection in countries around the world), the Madrid System (which facilitates obtaining trademark protection internationally), and the Hague Agreement Concerning the International Registration of Industrial Designs.  INPI also participates in the Global Patent Prosecution Highway, an arrangement among the IP offices of approximately 25-30 countries under which an applicant can request expedited examination of a patent application in one office (e.g., INPI) based on the work product of, and the issuance of a favorable decision by, another office (e.g., the United States Patent and Trademark Office).

When litigation is necessary, Brazilian courts offer equal treatment to foreign and domestic companies.  Litigation in Brazil can be lengthy and therefore expensive--not unlike IP litigation in the U.S.  Meanwhile, equitable remedies such as preliminary injunctions are easier to obtain in Brazil than in the U.S., while monetary damages awards tend to be lower in Brazil than in the U.S.

On the copyright side, Brazil is a member of the Berne Convention for the Protection of Literary and Artistic Works, which ensures that copyright works in one member country are protected in another member country.  Operation 404, an international and internationally acclaimed anti-piracy law enforcement exercise that relies on public-private collaboration to fight digital piracy on the Internet, originated in and continues to be run from Brazil.

Second, with a population of about 220 million people and an estimated GDP in 2023 of US$4 trillion, Brazil is the largest market in Latin America by far. 

For purposes of comparison, the population of Mexico (the next largest Latin American country) is about 131 million people, and Mexico's estimated 2023 GDP is $2.9 trillion.  (Note:  population and GDP numbers obtained from the CIA World Factbook.) In fact, Brazil has the 7th-largest population in the world and one of the top ten GDPs. As an added bonus, Brazilian citizens tend to appreciate U.S. culture and products.

Beyond its size, Brazil is actively pursuing growth.  The country's "New Industry Brazil" policy includes a 2024-2026 action plan that calls for improvements to the business environment (including simplification of Brazil's tax code) as well as focused nurturing of sustainable and digital agricultural supply chains; a resilient health-industrial complex; sustainable infrastructure, sanitation, housing, and mobility solutions; a digital transformation of Brazil's industry; decarbonization and energy security; and technologies important to the national defense. 

Third, with intellectual property protections extending into the future by 15 or 20 years or more, trends matter almost as much as current status--and the trends are generally positive.

Intellectual property protections in Brazil are better and more robust than they were even 5 years ago, and after contracting in 2020 during the COVID-19 pandemic, Brazil's economy has returned to growth.  As a result, even if you are not currently doing business in Brazil, you may wish to consider whether you should seek intellectual property protection there now to keep your options open over the next decade or two.

What kind of intellectual property protection do I need?

Great question! The USPTO has an Intellectual Property Identifier tool that can give you an initial idea of what form or forms of IP protection you may wish to pursue. Access the tool here: https://ipidentifier.uspto.gov/. And feel free to reach out to me if you’d like to discuss further.

Where can I learn more about the different forms of intellectual property?

Here again, the USPTO has some great resources. Here are some links with information you may find helpful:

Patents: https://www.uspto.gov/patents/basics

Trademarks: https://www.uspto.gov/trademarks/basics

Copyright: https://www.uspto.gov/ip-policy/copyright-policy/copyright-basics

Industrial Designs/Design Patents: https://www.uspto.gov/about-us/events/industrial-design-protection-united-states-and-europe-primer-small-businesses

Trade Secrets: https://www.uspto.gov/ip-policy/trade-secret-policy

Geographical Indications: https://www.uspto.gov/ip-policy/trademark-policy/geographical-indications