Brazil: Procedural Developments Triggered By The Law

Last Updated: 1 April 2013
Article by Joaquim Eugenio Goulart and Rodrigo De Assis Torres

Procedural law, as a social science, undergoes constant change. In recent decades, legislative measures designed to streamline the resolution of litigation have received considerable attention as citizens voice their desire for fair, expeditious and effective legal order, with real mechanisms for court protection.

During the history of the court system, suits have evolved from a simple means for claiming rights to an instrument for making them concrete. Civil suits not only aspire to uphold the rights of those who have them, they enable injured parties to recover assets of which they were deprived through noncompliance with legal order.

Yet suits require a considerable period of time in which to develop; courts need this time to ensure the integrity and content of their decisions. It is impossible to receive parties' claims, gather evidence and issue a decision all simultaneously. Urgent relief (subdivided into preventive and interlocutory injunctions), in this sense, is one of the legal devices that can alleviate the tension between the needs for swift, effective justice and a certain time for cases to be processed.

The Civil Procedure Code (CPC) of 1973 vested judges with broad, general power, both to effect common provisional measures and to create any other preventive measures the actual case requires to avoid irreparable damages from violation of the right in question. It authorized immediately applied injunctions, without a hearing for the defendant (thus impeding the opposing party from preventing their execution upon learning of the requested measure).

The CPC underwent major improvement during the 1990s with a series of legislative mini-reforms. Among the most pertinent changes was advancing of the effects of relief in any and every suit in which a party's subjective right is threatened if he must wait for the suit to be processed before concrete enforcement measures are established (CPC Article 273).

Also added was a procedure resulting in a decision (which provides for a preliminary injunction of the same nature) that orders or prohibits action under penalty of fine and/or other binding measures (CPC Article 461). This procedure initiated injunctions to prohibit the practice or continuation of unlawful acts.

In this historic context, Law 9,279/96, the current Industrial Property Law (IPL), was enacted one decade ago. In due time, legislators added to this IPL Paragraphs 1 and 2 of Article 209, which ensured the owner of a violated industrial property right, in the suit's court records, the practical means for halting the unlawful act in the timeframe that business demands.

Under this Paragraph 1, a judge may order immediate suspension of the industrial property rights violation, without hearing the defendant, in order to avoid irreparable damages. The above-mentioned Paragraph 2 provides that, in cases of flagrant reproduction or imitation of a registered trademark, a judge may order seizure of all the merchandise, products, objects, packaging, labels and other items that contain the counterfeit or imitated trademark.

The nature of immediate injunctions, whether preventive or interlocutory, set forth in the legal provisions above has been the subject of much discussion. However, this distinction is of little importance and reflects a conceptual concern. The immediate injunctions in Paragraphs 1 and 2 of IPL Article 209 may be defined as injunctions prohibiting the practice or continuation of an unlawful act (whose scope was clearly extracted from CPC Article 461), which may be preventive or interlocutory depending on the wording of the legal claims. The High Court of Justice says the following:

  • The granting of a request for injunctive relief for violation of a regularly issued Brazilian Patent Trademark Office (BPTO) patent, or an act that occasions it, in order to avoid irreparable damages, is conditioned upon the presence of the Civil Procedure Code requirements for ordering a provisional measure or for anticipating the effects of the equitable relief, as applicable, since Law 9,279/96, Article 209, §1 only guarantees the material right of the injured party to preliminary suspension of the damaging act. (REsp 685.360, Superior Court Justice Nancy Andrighi, DJ11.04.2005, p.303)

When the relief sought in a preliminary request is part of the cause of action, it is an interlocutory injunction; if it preserves a right, it is a preventive injunction. Notwithstanding, interlocutory and preventive relief measures are fully fungible (under CPC Article 273, Paragraph 7). For this reason, if an interlocutory injunction is erroneously requested instead of a preventive one, or vice versa, the appropriate injunctive relief for the specific situation shall be granted.

It is not the judge's discretion, but the presence of the legal requirements that ensures the party's subjective right to be granted the injunctive relief applicable to the actual case.

Prohibitory injunctions do not presuppose damages, but target illegal acts. Damages are an essential requirement for mandatory compensation, but not for establishing that an act is illegal. If an illegal act is independent of damages, there must be an injunction against the illegal act itself. The measures set forth in Paragraphs 1 and 2 of IPL Article 209 should be considered in this light: they protect trademarks, inventions and against unfair competition. They do not require evidence of loss, because prohibitory injunctions are preventive, and thus always directed toward the future.

Brazilian courts have widely applied the injunctions of Article 209, including in patent violation suits. One outstanding case was settled in the 3rd Circuit Court of Niterói, Rio de Janeiro (Case No. 2003.002.001732-1), where an injunction was granted to seal equipment that violated a patent and that was on board a foreign vessel in Brazilian territory.

Even when proof of patent violation depends on evidence from a technical expert, an injunction is applicable. Such a case requires submission of opinions from experts in the area, or even request for a preliminary judicial investigation, carried out without hearing the opposing party. Note that to grant an injunction, in addition to the threat of damages, the law requires relevant grounds of the right claimed (for preventive injunctions), or verisimilitude of the claims (for interlocutory injunctions). Thus there is no requirement for full proof, which would be incompatible with the injunction device.

In its Article 241, IPL also contains an important provision for establishing courts specialized in industrial property, which not only expedites judgment of the cases, but also strengthens judges' knowledge of the matters, thus raising the level of justice and effectiveness of decisions. Based on the cited provisions, the Rio de Janeiro Federal Court created four first instance courts specialized in industrial property (35th, 37th, 38th and 39th Federal Courts), and two specialized panels in the Region 2 Federal Court (Panels 1 and 2), whose jurisdiction extends to the state of Espírito Santo.

Despite the risks associated with specializing, namely the possible distortions caused by forced standardization of opinions due to the reduced number of magistrates judging cases concerning a single matter, the experience of the Federal Court of the State of Rio de Janeiro has produced encouraging results, most notably the unquestionable expeditiousness of processing of industrial property suits.

These considerations demonstrate that modern civil procedure is concerned with the delay in processing, thus giving rise to injunctions, the prohibitory injunctions of IPL Article 209 and the courts specialized in industrial property. Expeditious justice and the provision of prompt relief are pursued. As the illustrious Rui Barbosa would say, "late justice is not justice, but qualified and manifest injustice."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions