Attachment of Industrial Property Assets: Trademarks and Patents as Security for Enforcement

Judicial enforcement proceedings aim to ensure compliance with a certain, liquidated, and enforceable obligation on the part of the debtor, seeking to balance the principle of least onerousness to the debtor with the creditor's interest in having their right satisfied.

If the debtor fails to comply voluntarily with the obligation, current legislation provides that the debtor shall answer with all present and future assets to satisfy the debt, except for statutory exemptions, such as non-attachable assets.

In this context, judicial attachment (penhora) is the initial act of expropriation in enforcement proceedings, consisting of the direct or indirect seizure of debtor assets to guarantee compliance with the obligation and satisfy the creditor's claim.

Guided by the principles of procedural speed and economy, attachment must follow an order of priority as provided in Article 835 of the Code of Civil Procedure (CPC), which includes: money, public debt securities, market-quoted securities and investments, land vehicles, real estate, personal property (movable assets), livestock, ships and aircraft, shares and quotas in simple and business corporations, a percentage of the debtor company's revenue, precious stones and metals, acquisition rights derived from agreements to purchase and sell or fiduciary transfers in guarantee, and other rights.

Despite the breadth of this list, there are situations where creditors cannot locate attachable assets belonging to the debtor, thereby frustrating enforcement. To address such circumstances, Article 139, Item IV of the CPC allows judges to adopt atypical coercive measures—provided they are lawful—to ensure compliance with judicial obligations. However, these measures require the creditor to demonstrate that typical means have been exhausted and that the debtor acted in bad faith by concealing assets.

In short, the aforementioned Article 139 of the CPC grants the judge autonomy to apply measures that, even if not explicitly stated in statutory provisions, fulfill the objective of protecting the creditor's rights.

In the sphere of industrial property, governed by Law No. 9,279/96 (Industrial Property Law – LPI), assets such as trademarks, patents, and industrial designs are classified as movable property (personal property). Traditionally, these assets were not viewed as attachable collateral, even though Article 5 of the LPI already classified them as "movable property," which are likewise encompassed under Item VI of the aforementioned Article 835 of the CPC (which sets forth the priority order of attachable assets).

However, with advances in innovation and the growing market importance of these assets, industrial property—classified as movable property—has gained prominence, given that such protections not only confer various benefits upon the owner/inventor but can also represent significant commercial value. Furthermore, the judiciary's recent trend toward expanding enforcement mechanisms under Article 139, Item IV of the CPC has led to the frequent recognition of the attachability of industrial property assets.

Significantly, a trademark is a stable asset: once registered with the INPI, it is protected for ten (10) years and can be renewed indefinitely. Moreover, a trademark can be valued, bought, sold, licensed, and nowadays, attached. Similarly, patents can also represent assets of high economic value to their owners, as seen in the pharmaceutical industry.

The attachment of industrial assets, therefore, presents an excellent opportunity to enforce rights swiftly and effectively. Beyond providing a real and tangible guarantee, it creates a strong incentive for debtors to fulfill their financial obligations, driven by the prospect of losing control over an established trademark or a highly lucrative patent.

Among well-known trademarks that have been subject to court-ordered attachment, the following examples can be highlighted:

(Application No. 810097974/INPI, for games, toys, and hobbies)

• (Application No. 819080411/INPI, for hygiene products and perfumery)

(Application No. 815558147/INPI, for architectural and engineering services)

In summary, case law evolution—which now more prominently recognizes the attachment of industrial property assets—reflects a necessary adaptation to today's economic reality, where innovation and competitiveness confer high commercial value on these assets.

Therefore, the strategic protection and utilization of industrial assets are essential for companies and inventors, both in the course of their operations and in satisfying financial obligations.