Protecting the Famous: Understanding Art. 125 and Art. 126 Protection

Brazil’s Industrial Property Law (LPI) provides two distinct levels of enhanced protection for marks that have achieved exceptional recognition: Well-Known marks under Article 126 and High Renown marks (“marca de alto renome”) under Article 125. Although both confer protection beyond the ordinary scope of a trade mark registration, they differ fundamentally in their requirements, scope, procedures, and strategic applications. Confusing the two is one of the most common errors in Brazilian trade mark practice.

Article 126: Well-Known Marks (Marca Notoriamente Conhecida)

Article 126 of the LPI implements Brazil’s obligations under Article 6bis of the Paris Convention, which requires member states to protect marks that are well-known in a particular industrial or commercial sector, even if they are not registered in the country.

The key characteristics of well-known mark protection are:

• No registration required: Protection under Article 126 does not require the mark to be registered in Brazil. A foreign brand that is well-known in its relevant sector can invoke this protection even without a Brazilian registration.
• Sector-limited protection: The protection extends only within the relevant industrial or commercial sector in which the mark is known. A well-known mark for automotive products is protected in the automotive sector but not in unrelated sectors like food or fashion.
• Asserted in proceedings: Well-known mark status is not declared in advance by INPI. Instead, it is asserted by the mark owner during specific proceedings — such as an opposition, a nullity action, or an infringement case — supported by evidence demonstrating the mark’s recognition within its sector.
• Evidence of sectoral recognition: The mark owner must prove that the mark is recognised by professionals, consumers, and traders within the relevant market segment in Brazil.

Well-known mark protection under Article 126 is a defensive tool: it allows the mark owner to block conflicting registrations or uses within its sector, even without holding a Brazilian registration. However, it does not provide the cross-class “super-protection” that comes with High Renown status.

Article 125: High Renown Marks (Marca de Alto Renome)

Article 125 provides the highest level of trade mark protection available under Brazilian law. A mark declared to have High Renown receives protection across all 45 classes of goods and services, regardless of the classes for which it is actually registered. This is an extraordinary form of protection that effectively creates a cross-class shield against conflicting marks in any product or service category.

The key characteristics of High Renown protection are:

• Registration required: Unlike well-known marks under Article 126, High Renown status is only available to marks that are registered in Brazil. The registration is the foundation on which the cross-class protection is built.
• Administrative recognition required: High Renown status must be formally requested from and declared by INPI through a specific administrative proceeding. It cannot simply be asserted during litigation or opposition proceedings — the mark owner must file a dedicated petition.
• Cross-class protection: Once declared, the High Renown mark is protected against identical or confusingly similar marks in all classes, not just the class of registration.
• Ten-year duration: Under the rules consolidated by INPI Ordinance No. 08/2022 (as amended by Ordinance No. 25/2025), High Renown status lasts for ten years. During the final year, the mark owner may submit updated evidence for renewal.

The Evidence Requirements for High Renown

Obtaining High Renown status requires a substantial evidentiary showing. Under Articles 64 and 65 of INPI Ordinance No. 08/2022, the mark owner must demonstrate:

• Recognition by a broad segment of the general Brazilian public: Not merely the relevant trade sector, but the consuming public at large. The standard is materially higher than for well-known marks.
• Quality, reputation, and prestige: The brand must be associated with quality, reliability, and commercial prestige in the minds of Brazilian consumers.
• High degree of distinctiveness and exclusivity: The mark must possess strong distinctive character and be closely identified with a single source.

Under the recent amendments by Ordinance No. 25/2025, the first two requirements should preferably be evidenced by nationwide market surveys. The standards for such surveys are detailed in INPI’s Trademark Manual. In addition to surveys, any legally admissible evidence may be submitted, including sales data, advertising expenditure, media coverage, market share data, and brand valuation reports.

The Distinction in Practice

The practical differences between the two protections are best understood through a comparison:

• Scope of recognition: Well-known marks (Art. 126) are recognised within their specific sector. High Renown marks (Art. 125) are recognised by the general Brazilian public across all sectors.
• Registration requirement: Well-known marks do not need to be registered in Brazil. High Renown marks must be registered.
• Administrative procedure: Well-known mark status is asserted in individual proceedings as needed. High Renown status requires a dedicated INPI petition and formal declaration.
• Scope of protection: Well-known marks are protected within their sector. High Renown marks are protected across all 45 classes.
• Duration: Well-known mark protection is asserted on a case-by-case basis. High Renown status is formally declared for a ten-year period.

Strategic Uses

• For internationally famous brands without a Brazilian registration: Article 126 (well-known mark) provides a defensive tool to block conflicting filings in the relevant sector. However, the most effective strategy is to file for registration promptly and, where the evidence supports it, pursue a High Renown declaration.
• For brands registered in Brazil with widespread recognition: Article 125 (High Renown) provides the ultimate protection — a cross-class shield that can be used to oppose applications, nullify conflicting registrations, and strengthen infringement actions across all product and service categories.
• For clearing the register: A High Renown declaration can be invoked to nullify existing registrations that are identical or confusingly similar, regardless of the class.
• For deterring squatters: A formal High Renown declaration signals that the brand owner has the tools and the evidence base to enforce aggressively across all classes.

Common Mistakes

• Confusing the two protections: Well-known (Art. 126) and High Renown (Art. 125) are legally and procedurally distinct. Using the wrong one in the wrong context can result in a failed claim.
• Assuming international fame is sufficient: Both protections require recognition in Brazil. International fame, while supporting evidence, is not a substitute for proof of Brazilian recognition.
• Attempting High Renown without registration: High Renown status is only available to marks registered in Brazil. File and secure the registration first.
• Neglecting to renew High Renown status: The ten-year declaration must be renewed. Failure to submit updated evidence during the final year can result in loss of the cross-class protection.
• Using well-known mark status when High Renown is needed: If cross-class protection is the goal, well-known mark status under Article 126 is insufficient. A formal High Renown declaration under Article 125 is required.

Key Takeaway

Brazil provides two powerful but distinct mechanisms for protecting famous marks. Article 126 (well-known marks) offers sector-limited protection without requiring registration — a valuable defensive tool for international brands. Article 125 (High Renown) offers the broadest protection available under Brazilian law — cross-class protection across all 45 classes — but requires registration, a formal INPI petition, and substantial evidence of recognition by the general Brazilian public. Understanding which mechanism applies, and building the appropriate evidence base, is essential for any brand protection strategy in Brazil.