Marca de posição: um estudo sobre a nova tutela proprietária no serviço bancário do Brasil

Abstract

This study has as its theme the proprietary protection of the mark of position in Brazil and postulates a study on this new trademark registration from the perspective of its potential use in the sector of Brazilian banking services. Considered a non-traditional trademark, this modality already has the possibility of being granted in other industrial property offices around the world, but the Brazilian National Institute of Industrial Property [Instituto Nacional da Propriedade Industrial] did not allow its registration due to lack of regulation of the registration procedures, despite being a visually perceptible trademark and, therefore, in thesis, being in accordance with the provisions of Law No. 9279 of 1996. It so happens that in 2021, the autarchy finally regulated the requirements and procedures for the registration of the position mark in Brazil, both for products and services, which aroused among scholars and enforcers of the law relevant debates about the effectiveness of legal protection in the country. The main problem motivating the research lies in the question of how the registrability of a sign, applied in a singular and specific position, in a given support, when the mark refers to the provision of a service, would be achieved. Furthermore, the impossibility of using secondary meaning in Brazil, an institution commonly used in other countries to prove that certain marks have acquired distinctiveness through use, would be a problem for the registration of a service mark for the Brazilian banking sector. The research proves to be important due to the absence of research on position marks when it comes to services, especially in the banking sector, which in 2022 had 4 of the 5 most valuable brands in the country. To this end, the methodological path adopted was bibliographic and exploratory, seeking, through a non-exhaustive research, to investigate the prospects of registrability of this new brand modality in the sector. The result of the investigation showed that, although none of the banks surveyed had registered a position trademark in the country since the normatization of proprietary protection, there is potential for trademark registration in this new modality when considering facades, credit/debit cards and web pages as supports for the application of the distinctive sign. It was also verified that the absence of secondary meaning regulation in Brazil would result in difficulty in registering some signs used by the banking sector as marks of position of service.