A DESATUALIZAÇÃO DO CONCEITO DE MARCA NA LEI DE PROPRIEDADE INDUSTRIAL BRASILEIRA E SEUS REFLEXOS NO DIREITO BRASILEIRO

Abstract

This paper seeks to prove the incompleteness of the trademark concept linked only to the visual representation in the Brazilian legislation. Based on this concept of trademark, it will be demonstrated that other countries have already updated their legislation and that the delay in modifying the Industrial Property Law leaves Brazil at an economic disadvantage, and that creators are vulnerable to copies of their trade dress and non-traditional trademarks. From the analysis of secondary meaning and degeneracy, as phenomena that affect distinctiveness, the need to change the concept of trademark will be proven. Subsequently, judicial and administrative decisions involving the protection of these assets in Brazil will be analyzed in order to demonstrate how the current trademark concept brings about numerous discussions in the Judiciary on the extension of protection of non-traditional trademarks.