Direito de precedência: um estudo sobre a comprovação de uso anterior de marca

Abstract

The research had as main purpose to study the preferential right of registration, the evidence of prior trademark use and the legal nature of the marks. Therefore, theoretical research was carried out, using the techniques of literature review, research and analysis of jurisprudence and norms, from Brazil and abroad, with emphasis on the norms of the United States and the European Union. First, it was concluded that trademarks are a sui generis property, since the domain relationship that a person exercises over the object makes the trademarks have this characteristic of real rights, however, they contain peculiar characteristics such as temporality and territoriality. In addition, it was observed that the preferential right of registration is a generative and formative right, being a mere registration preference, and not a property right. Finally, it was concluded that the current rules are insufficient to resolve all doubts regarding the analysis of evidence of prior trademark use. This is because the Law No. 9,729/1996 established only the minimum requirements for the configuration of such right, namely: use in good faith, in the country and for at least six months from the priority or filing date, an identical or similar mark to mark or certify product of identical or similar segment. Therefore, the main conclusion of the research is that it is urgent to detail, by the National Institute of Industrial Property, specific procedures for the analysis of proof of prior trademark use, notably in reference to implicit requirements of use, such as those related to the use of the signal as a trademark.