BRAZIL: Change in PTO Databases Access Procedures

The Brazilian Patent and Trademark Office (BPTO) has updated its procedure regarding availability of trademark petitions and documents so that third parties must now file an electronic form describing why they want to access the specific petition/document. Such access must be classified under one of the following categories:

1. Intent to take part in the case;
2. Verification of authorship of invention or utility model;
3. Professional or academic research;
4. Exercise of a fundamental right;
5. Preventing or remedying an intellectual property (IP) infringement; or
6. Clarification of doubts about the case.

Earlier this year, a BPTO official said that this change would “allow social control of the BPTO’s cases and decisions” by “establishing a balance between publicity and privacy, as well as guaranteeing access to information and privacy protection.” The Office considered the updated procedure to be a top priority for 2022 in its Information and Communications Technology (ICT) Director Plan for 2022–2023, published on August 8, 2022. Among other guidelines, the ICT Director Plan contemplates a set of targets and actions to undertake and function as an instrument in the diagnosis, planning, and management of the BPTO’s ICT resources and processes.

The above measure was taken in alignment with recent legislative updates on data privacy in Brazil: (1) the entry into force of Law 13,709/2018 (General Data Protection Law or GDPL) in September 2020; and (2) the Brazilian Congress’s approval of a constitutional amendment that made personal data protection a fundamental individual right in February 2022.

Since the GDPL is a novelty for many in Brazil, private companies and public entities that process personal data, such as the BPTO, that process personal data are still in the middle of implementing comprehensive data privacy strategies. The GDPL, which follows some of the concepts of the European Union General Data Protection Regulation (EU GDPR), is the first comprehensive data protection law in Brazil and brings about significant cultural changes.

Considering that petitions and documents available in the BPTO’s online database may contain personal data of users of the trademark system, the Office’s rationale with this action is to protect personal data from unauthorized accesses. Consequently, applicants/registrants or their counsel are not required to complete the electronic form’s access purpose field. In fact, these parties can now check the list of all users that have accessed their relevant documentation, and may request the BPTO to prevent certain access to potential violators of their privacy rights.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest. Law & Practice updates are published without comment from INTA except where it has taken an official position.

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