The Protection of Colors, Signs, Scents, and Other Symbols through Intellectual Property

The protection of a company’s intangible assets—assets that do not physically exist—is an area that requires particular attention and care. Within Intellectual Property, the assets that receive the most attention are trademarks, patents and industrial designs, as well as works protected by Copyright. But what about intangible assets that do not fall within any of these categories?

The development of intellectual creations is often driven by the desire to stand out in the market, whether through the invention of a new product and/or process that may be protected by a patent, the creation of an innovative and original design that may be registered as an industrial design, or even the development of a trademark, name, logo or figure with distinctive potential.

The constant stimulus to consumption has made people increasingly resistant to traditional sales methods, making it more difficult for businesses to stand out from their competitors. As a result, brands are required to develop much more comprehensive marketing strategies, and other aspects have come to be considered in building a company’s image.

Presenting a business to consumers, creating a connection with them, and ensuring that they remember the brand positively and naturally—thereby building a relationship between the brand and the customer—is known as branding, an important process that may require significant investment.

This process of building an image in the consumer’s mind goes beyond the development of a registrable trademark—we explain in this video how trademark protection works in Brazil—and may involve combinations of elements such as colors, symbols, lines and shapes, as well as sensory elements such as scents. These combinations are known as trade dress or the overall image and appearance of a brand.

Trade dress and/or overall image, in our view, is the outward appearance of an object, product or its packaging; it is the distinctive manner in which it is presented and becomes known. It is, quite simply, its “clothing” and/or “uniform,” that is, a distinctive feature, appearance or particular manner in which something is habitually presented to the consumer market or to users.

SOARES, José Carlos Tinoco. Trade dress e/ou “conjunto-imagem”. Revista da ABA, Rio de Janeiro, No. 15, Mar./Apr. 1995, p. 25.

All of these symbols, individually or in combination, may acquire meaning for consumers. For example, the jewelry company Tiffany developed the exclusive color “Tiffany Blue” in partnership with Pantone, which is now easily associated with the brand.

Available here. Accessed September 8, 2021, at 8:25 p.m.

An example of a combination of symbols capable of distinguishing a business is the Mr. Cat store, which uses a specific graphic arrangement, furniture and wooden décor in the same shade as its storefront, among other characteristic elements.

Available here. Accessed September 8, 2021, at 8:28 p.m.

With respect to sensory elements, the use of specific scents to identify a retail establishment is also noteworthy. FARM and Maria Filó are examples of stores recognized by consumers through their distinctive fragrances.

Available here. Accessed September 8, 2021, at 8:30 p.m.

In Brazil, however, the Brazilian Patent and Trademark Office (INPI) does not allow any of these elements to be registered individually or even in combination. Nevertheless, Brazilian law provides protection for the overall image of a business through the repression of acts of unfair competition, meaning any act capable of creating confusion with a competitor’s establishment, product, or industrial or commercial activity.

Accordingly, there is no specific administrative mechanism for protecting branding elements or trade dress. However, in cases involving the copying or appropriation of symbols that make up the identity of a business, such infringement may be brought before the courts for analysis and judgment.

Cases involving this subject are complex and require specialized analysis to determine whether the requirements for recognition of trade dress are present, assess whether extrajudicial measures may be appropriate—such as sending a cease-and-desist letter to the potential infringer—and, where advisable, initiate court proceedings.