Introduction
Registering a trademark with INPI (National Institute of Industrial Property) in Brazil grants exclusive rights to its owner. However, in some cases, a trademark registration can be declared null, meaning it loses its legal protection. This can happen due to errors in the registration process, legal violations, or conflicts with prior rights.
In this article, we will explain what trademark nullity is, when it applies, who can request it, and how the process works in Brazil.
1. What Is Trademark Nullity?
Trademark nullity is the legal cancellation of a trademark registration. If a trademark is declared null, it is as if the registration never existed, and the owner loses exclusive rights over it.
A trademark can be totally or partially nullified, depending on the specific violations found.
1.1. Types of Trademark Nullity
🔹 Absolute Nullity: The registration violates non-registrability rules, such as generic terms, misleading marks, or unauthorized use of public symbols.
🔹 Relative Nullity: The registration violates third-party rights, such as conflicting with a previously registered trademark or being obtained in bad faith.
2. Who Can Request Trademark Nullity?
A nullity request can be filed by:
✅ Third parties who believe the trademark infringes their prior rights.
✅ The INPI itself, if it identifies errors or violations in the registration process.
✅ The Judiciary, if a court rules that the trademark should be nullified.
The request must be justified with evidence, showing that the registration violates Brazilian trademark law.
3. What Are the Main Reasons for Trademark Nullity?
There are several reasons why a trademark may be nullified, including:
3.1. Registration in Violation of Trademark Law
Some trademarks are not eligible for registration because they:
🚫 Are generic or descriptive terms (e.g., “Best Coffee” for a coffee brand).
🚫 Are misleading, creating confusion about the product’s origin.
🚫 Contain official symbols (flags, government seals) without authorization.
🚫 Are offensive or contrary to public morals.
3.2. Conflict with a Prior Registered Trademark
If a trademark is too similar to an existing one and could cause confusion among consumers, the prior rights holder can request nullity.
Example: If a company registers “Nikez” for sports shoes, Nike could file for nullity due to risk of confusion.
3.3. Bad Faith Registration
If a person or company registers a trademark with dishonest intentions, such as blocking competitors from using a name or trying to profit from an existing brand’s reputation, the registration can be nullified.
Example: Someone registering “AppleTech” to mislead consumers into thinking the brand is related to Apple Inc.
3.4. Errors in the Registration Process
If INPI fails to follow legal procedures when granting a trademark (for example, not properly examining prior trademarks), the registration may be declared null.
4. How Does the Trademark Nullity Process Work?
Step 1: Filing a Nullity Request
A nullity petition must be submitted to INPI within 180 days after the trademark’s approval is published in the Industrial Property Gazette (RPI).
✅ The request must include legal arguments and supporting evidence.
✅ INPI will notify the trademark owner, who has 60 days to respond.
Step 2: INPI’s Decision
INPI will analyze the case and issue a decision, which can result in:
🔹 Full nullity (the trademark loses all protection).
🔹 Partial nullity (only some elements of the registration are removed).
🔹 Rejection of the nullity request (if INPI finds no legal violations).
Step 3: Judicial Appeal (If Necessary)
If the nullity request is denied, the applicant can challenge the decision in court, requesting that a judge nullify the registration.
5. Consequences of Trademark Nullity
If a trademark is nullified:
❌ The owner loses all exclusive rights over it.
❌ The brand name or logo can be registered by others.
❌ Any legal actions based on the invalid trademark become ineffective.
If the owner wishes to keep using the brand, they must register a new trademark that complies with legal requirements.
Conclusion
Trademark nullity is a critical legal process that ensures only legally valid trademarks remain protected. To avoid having your trademark nullified, it is essential to:
✅ Conduct a thorough trademark search before registering.
✅ Ensure the brand is unique and does not infringe on prior rights.
✅ Follow all INPI regulations and respond to opposition requests.
Understanding how trademark nullity works helps businesses protect their intellectual property and avoid costly legal disputes.
