Fernanda Tissot

The ownership of a trademark registered with the Brazilian PTO (INPI) can bring significant competitive advantages. Among these is the exclusive right to use the trademark throughout the national territory and the ability to prevent third parties from using identical or similar trademarks that may cause confusion among consumers.

In this regard, with the increasing digitalization of business and the offering of products and services online, trademark violations have also begun to occur in the digital world. It is not uncommon for owners of registered trademarks to come across unauthorized reproductions or imitations of their distinctive signs, which can even lead to customer diversion: a customer searching for a brand is suddenly impacted by a competing brand that was not the original subject of their online search.

Although the digital environment may seem like a “no man’s land,” it is important to emphasize that the Brazilian Internet Civil Rights Framework (Law No. 12,965/2014) establishes principles, safeguards, rights, and obligations for internet use in Brazil.

“Article 19¹ of the Internet Civil Rights Framework establishes that so-called ‘application providers that so-called “application providers” (for example, social networks, marketplaces, and search engines) are required to remove infringing content generated by third parties when there is a specific court order to do so, provided that such an order includes the identification of the content deemed to be infringing. In this sense, providers can only be held civilly liable for damages resulting from third-party content if, after a court order, they fail to take steps to make the infringing content unavailable.

The exception to the need for a court order applies to cases of copyright infringement and what is referred to as “revenge porn,” as highlighted in Article 21² of the Internet Civil Rights Framework (Law No. 12,965/2014).

The requirement of a court order for the removal of third-party content was included in the Internet Civil Rights Framework (Law No. 12,965/2014) in an effort to safeguard freedom of expression and prevent censorship on the internet. However, the article has faced much criticism, as the need for a court order to remove infringing content can harm rights holders, especially holders of industrial property assets, such as trademarks, given the slow pace of the judiciary.

In other words, it would not be enough to send an extrajudicial notice to a social network to have infringing trademark content removed. Instead, it would be necessary to file a lawsuit including, in the removal request, the URLs of the content that infringes the trademark. However, although the Internet Civil Rights Framework (Law No. 12,965/2014) addresses the potential liability of content providers after failure to comply with a specific court order, many providers act proactively, assisting in the protection of industrial property rights of those facing infringements on their platforms.

This is the case with social networks such as Facebook, which, although encouraging parties to resolve matters directly, offers a form for reporting trademark violations. In this form, the rights holder or their attorney must attach the trademark registration certificate and indicate the potentially infringing content. After receiving the report, Facebook may request additional information and then remove the content containing the violation, notifying the third party so that, if they wish, they may contact the complainant. This tool is also available for Facebook Marketplace.

The same applies to marketplaces such as Amazon (Amazon Brand Registry) and MercadoLivre (Brand Protection Program), which have intellectual property protection programs in place to remove infringing content, provided certain requirements are met.

Furthermore, search engines such as Google, especially Google Ads (a tool that enables the placement of ads on the platform), also offer tools for submitting trademark-related complaints through the Trademark Authorization Form.

Thus, the proactive mechanisms made available by application providers ensure faster removal of content that violates trademarks, safeguarding rights quickly and effectively, and thereby preventing the dilution and infringement of protected trademarks. Considering this market behavior and the many discussions around the restrictiveness of Article 19 regarding the requirement of a court action for the removal of infringing content, the matter reached the Brazilian Supreme Federal Court (STF) under Topic 987 (RE 1.037.396).

In June 2025, the STF ruled that platforms can be held directly liable for infringing content even without a prior court order, particularly in cases involving nudity or pornography without consent.

The STF’s decision, published in November 2025, extended the application of the procedure known as “notice and take down” to illicit content beyond non-consensual nudity.

This interpretation of Article 19 reduces bureaucracy, time, and cost for the rights holders taking action against infringements, representing a major step forward on the matter, considering the harm that delays in removing illicit content can cause.

¹Article 19. With the aim of ensuring freedom of expression and preventing censorship, an internet application provider may only be held civilly liable for damages arising from third-party content if, after a specific court order, it does not take action, within the scope and technical limits of its service and within the given timeframe, to make the identified infringing content unavailable, subject to legal provisions to the contrary.

§1. The court order referred to in the caput must contain, under penalty of nullity, a clear and specific identification of the allegedly infringing content that allows for its unequivocal location.

²Article 21. An internet application provider that makes third-party content available shall be subsidiarily liable for violations of privacy resulting from the disclosure, without the authorization of the participants, of images, videos, or other materials containing scenes of nudity or sexual acts of a private nature, when, after receiving notification from the participant or their legal representative, it fails to promptly make such content unavailable, within the scope and technical limits of its service.

Sole Paragraph. The notification referred to in the caput must contain, under penalty of nullity, elements that allow for the specific identification of the material alleged to violate the participant’s privacy and verification of the legitimacy to submit the request.