Trademark infringement on the internet and proactive content removal mechanisms

Ownership of a trademark registered with the Brazilian National Institute of Industrial Property (INPI) can bring significant competitive advantages. Among them is the exclusive right to use the mark throughout the national territory and the ability to prevent third parties from using identical or similar marks that cause confusion among the consuming public.

In this context, with the increasing digitalization of business and the online offering of products and services, trademark infringements have also migrated to the digital realm. It is not uncommon for registered trademark owners to encounter unauthorized reproductions or imitations of their distinctive signs, which can even result in the diversion of customers: a customer searching for one brand is suddenly targeted by a competing brand that was not the original subject of their internet search.

Although the digital environment may seem like a "no man's land," it is important to highlight that the Brazilian Civil Rights Framework for the Internet (Law No. 12,965/2014) establishes principles, guarantees, rights, and duties for internet use in Brazil.

Under Article 19¹ of this Law, so-called "application providers" (such as social networks, marketplaces, and search engines) are obligated to remove infringing third-party content when served with a specific court order to do so, provided that the order explicitly identifies the infringing material. Furthermore, providers will only be held civilly liable for damages arising from third-party content if, following a court order, they fail to take steps to make the identified infringing content unavailable.

Exceptions to the court order requirement exist in cases of copyright infringement and what is known as "revenge porn," as outlined in Article 21² of the Civil Rights Framework for the Internet (Law No. 12,965/2014).

The court order requirement for removing third-party content was included in the Civil Rights Framework for the Internet (Law No. 12,965/2014) in an attempt to safeguard freedom of expression and prevent internet censorship. However, the article faced widespread criticism, as requiring a court order for content removal can prejudice rights holders—particularly owners of industrial property assets such as trademarks—given the judicial system's inherent delays.

In other words, sending an extrajudicial notice to a social network would not suffice to remove content displaying an infringing trademark; rather, it would be necessary to file a lawsuit specifying in the removal request the exact URLs containing the infringing material.

However, despite the Civil Rights Framework (Law No. 12,965/2014) establishing that content providers are liable only upon non-compliance with a specific court order, many platforms act proactively to help protect the industrial property rights of those suffering infringements on their services.

Social networks like Facebook serve as an example: although encouraging parties to resolve disputes directly, Facebook provides a dedicated trademark infringement report form. In this form, the rights holder or their attorney-in-fact must attach the trademark registration certificate and indicate the potentially infringing content. Upon receiving the report, Facebook may request additional information before removing the violating content and notifying the third party so that they may, if they wish, contact the reporting party. A similar tool is also available for Facebook Marketplace.

The same applies to marketplaces such as Amazon (Amazon Brand Registry) and Mercado Livre (Brand Protection Program), which maintain intellectual property protection programs to take down infringing content once specific criteria are met.

Additionally, search engines such as Google—specifically Google Ads (the tool enabling ads on the platform)—offer tools for submitting trademark complaints, such as the Trademark Authorization Form.

Thus, the proactive mechanisms provided by application providers ensure swift removal of trademark-infringing content, protecting rights quickly and decisively while preventing the dilution and infringement of protected marks.

Taking into account this market behavior and the extensive debate surrounding the strictness of Article 19 regarding whether content removal must be tied to filing a lawsuit, the issue reached the Brazilian Supreme Federal Court (STF) through General Relevance 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 non-consensual nudity or pornography.

The STF decision, published in November 2025, extended the application of the procedure known as "notice and takedown" to illicit content beyond non-consensual nudity.

This interpretation of Article 19 reduces red tape, time, and costs associated with the actions taken by infringed rights holders, marking a major advancement on the subject given the damage that delayed removal of illicit content can inflict.

¹ Article 19. In order to guarantee freedom of expression and prevent censorship, an internet application provider may only be held civilly liable for damages resulting from content generated by third parties if, after a specific court order, it fails to take measures, within the scope and technical limits of its service and within the designated timeframe, to make the content identified as infringing unavailable, subject to statutory provisions to the contrary.

Paragraph 1. Under penalty of nullity, the court order referred to in the header of this Article shall contain clear and specific identification of the content designated as infringing, allowing for the unambiguous location of the material.

² Article 21. An internet application provider that makes third-party content available shall be held secondarily liable for privacy violations resulting from the unauthorized disclosure of images, videos, or other materials containing scenes of nudity or private sexual acts of its participants when, after receiving notification from the participant or their legal representative, it fails to diligently take measures, within the scope and technical limits of its service, to make such content unavailable.

Sole Paragraph. Under penalty of nullity, the notification provided for in the header of this Article shall contain elements allowing for the specific identification of the material designated as violating the participant's privacy and verification of authorization to submit the request.