In a judgment published on November 12, 2014, the Second Panel of the Federal Court of Appeals of the Second Circuit (TRF2) ordered the Brazilian National Institute of Industrial Property (INPI) to issue, within 60 days, a final decision on the appeal filed by A Especialista Comércio e Design de Móveis Ltda (A Especialista). A Especialista was appealing INPI's rejection of its trademark application. Based on Federal Law No. 9,784/99, which regulates the federal administrative proceedings, in conjunction with Federal Law No. 9,279/96, the Industrial Property Law Justice André Fontes found that INPI was taking an unreasonable amount of time to resolve the appeal (six years), and said that this would amount to an unjustifiable omission (Proceedings No. 0131120-46.2013.4.02.5101).

A Especialista sought a judgment to compel INPI to issue a decision on the appeal sooner, i.e., to have it prioritized. INPI contended that A Especialista should wait in the chronological line. This argument was rejected, and INPI has not challenged the TRF2 court's judgment.

According to the language of Brazil's federal laws, INPI, as a federal, self-sufficient agency, should have brought the appeal to trial within 180 days from its filing. In other words, not complying with the legal obligation to decide a case in a reasonable time amounted to an inexcusable omission. Moreover, upholding the first instance judge's opinion, Judge Eduardo Fernandes of the TRF2 reiterated that these laws echo the constitutional principle that administrative cases should be concluded in a reasonable amount of time. The amount of time that is considered fair and necessary should be assessed on a case-by-case basis.

This judgment is seen as one solution for those who have been waiting an unreasonable amount of time to receive a decision on their trademark applications.

Verifier: Erica Aoki, Aoki Advogados Associados, São Paulo
INTA Bulletin Law & Practice—Latin America & the Caribbean Subcommittee


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