In Brazil, the criminal enforcement of intellectual property rights is subject to a different regime, depending on the nature of the right violated and the type of crime committed by the infringer. Criminal proceedings can be initiated by the rights holders (private complaint), or by the Public Prosecutor’s Office (unconditional public prosecution or public prosecution conditional on the victim’s representation) as the case may be.

The prosecution for crimes against industrial property, namely crimes against patents, industrial designs, trademarks, geographic indications and unfair competition, is commenced by the intellectual property owner filing a private complaint, except when the offender reproduces or imitates national, foreign or international official armorial bearings or badges. In this situation, the charges are brought solely by the Public Prosecutor’s Office (unconditional public prosecution).

As to copyright infringement, pursuant to Article 186 of the Brazilian Criminal Code, the criminal proceedings must be initiated by:

• private complaint in case of crimes against copyrights and related rights;
• unconditional public prosecution when the crimes above are committed for direct or indirect profit; 
• unconditional public prosecution in case of crimes committed against public entities, an independent agency, public company, government-controlled company or government foundation; or
• public prosecution conditional on the victim’s representation if the infringement consists of offering to the public, by cable, fiber optics, satellite, waves or any other system that allows the user to make a selection of the work or production to receive it at a time and place previously determined by the one who orders, for direct or indirect profit.

The official statistics published by the National Council of Justice, an agency of the Judiciary, reveal that in criminal proceedings involving intellectual property rights, the subject matter typically relates to copyrights and trademarks. The vast majority of criminal cases involve copyrights. The prosecution of crimes against industrial property occurs much less frequently; such cases represent around half of the total of copyright infringement cases. Among industrial property rights, trademarks are the most enforced.

While the Copyright Law provides for copyright protection in Brazil, the criminal offenses related to it are defined by the Criminal Code as follows:

Copyright infringement

Article 184. Violation of copyright and related rights: 

Penalty – detention, from three months to one year, or fine.

§ 1º If the infringement consists of a total or partial reproduction, with the intent to obtain direct or indirect profit, by any means or process, of an intellectual work, interpretation, performance or phonorecord, without the express authorization of the author, the performer, the producer, as the case may be, or who represents them:

Penalty – imprisonment, from two to four years, and fine.

§ 2º The same sanction set out in relation to § 1º will be applied to someone who, with the intent to obtain direct or indirect profit, distributes, sells, offers for sale, rents, introduces in the country, acquires, hides, has in store, an original or copy of an intellectual work or phonorecord reproduced in violation of copyright, the right of the performer or the right of the phonorecord producer, or who rents the original or a copy of an intellectual work or phonorecord, without the express authorization of the owners or their representative.

§ 3º If the infringement consists of offering to the public, by cable, fiber optics, satellite, waves or any other system that allows the user to make a selection of the work or production to receive it at a time and place previously determined by the one who orders, with the purpose of making a profit, direct or indirectly, without the express authorization, as the case may be, of the author, the performer, the phonorecord producer, or whoever represents them: 

Penalty – imprisonment, from two to four years, and fine.

§ 4º The provisions of §§ 1º, 2º, and 3º will not be applied in the case of exceptions or limitations to copyright or related rights, according to the provisions of the Copyright Law, nor in the case of a copy of an intellectual work or phonorecord, in single copy, for the private use of the copyist, with no intention to obtain direct or indirect profit.

On the other hand, the Industrial Property Law prescribes crimes against patents, industrial designs, trademarks, geographic indications and unfair competition. In general terms, anyone who exploits, without authorization, the industrial property of a third party, or uses fraudulent means to divert someone else’s clientele, commits a crime. 

With regard to trademark infringement, the criminal offenses are the following:

Crimes against trademarks

Article 189. Commits a crime against trademark registration who:

I – reproduces, without authorization of the owner, in whole or in part, a registered trademark, or imitates it in a manner that may induce confusion; or

II – alters the trademark of a third party already applied to a product placed on the market.

Penalty – detention, from three months to one year, or fine.

Article 190. Commits a crime against trademark registration who imports, exports, sells, offers or exhibits for sale, hides or has in stock:

I – product identified by a trademark illegally reproduced or imitated, in whole or in part; or

II – a product from their industry or commerce, held in a vessel, container or package carrying a legitimate mark of a third party.

Penalty – detention, from one to three months, or fine.

Note that the detention period may be increased from one third to one half if:

• the accused is or was a representative, attorney, agent, partner or employee of the patent or registration holder, or of its licensee; or 
• the altered, reproduced or imitated mark is well known, famous, or is a certification or collective mark (Article 196, IPL).

As in most countries, in Brazil, the intellectual property holder (or the Public Prosecutor’s Office, as the case may be), bears the burden of proving all the elements of the crime. Under the Criminal Procedure Code, the private or public complaint is not admitted if there is no evidence of the infringement, which is the reason why the proceedings are usually initiated by a preliminary search-and-seizure, so that an expert examination can be carried out to prove the infringement. 

Besides the counterfeit products, all equipment utilized by the counterfeiter to commit the crime can be seized. When delivering the judgment, the court may order the destruction of the goods at issue, as well as the forfeiture of the seized equipment in favor of the National Treasury, which must destroy it, donate it to the States, Municipalities, the Federal District, to public educational or social assistance institutions, or incorporate it into the assets of the Federal government.

Up until now, there have not been specialized courts to deal with intellectual property matters in the criminal area. However, there are law enforcement departments dedicated to crimes against intellectual property in some States such as São Paulo and Rio de Janeiro. The Judiciary has recognized the importance of intellectual property for the development of the country, so the creation of specialized courts is always a possibility.

Since Brazil is a civil law country, the framework for civil enforcement of intellectual property rights is statutory. The Industrial Property Law, the Software Law and the Copyright Law are the laws that usually give grounds for enforcement against counterfeiters.

In general terms, the rights holder has the right to prevent third parties from using their intellectual property without their previous consent, as well as obtaining compensation for unauthorized exploitation of the intellectual property. To enforce such rights, the main remedies available are:

• injunctions;
• search-and-seizure;
• anticipated production of evidence;
• damages;
• destruction of infringing goods; and/or
• recovery of a portion of legal costs.

With regard to damages, the intellectual property holder may be awarded compensation for past, present and prospective losses suffered as a result of the counterfeiting, as well as for non-economic damages. Punitive damages are generally not available in Brazil, even if the defendant’s conduct was wanton and willful, reckless, or malicious. 

The Industrial Property Law provides that compensation will be determined by the benefits that the injured party would have received if the breach had not occurred. The criteria for the calculation of lost profits are set out in Article 210, which states that the criterion that is most favorable to the rights holder shall be adopted, as follows:

1. the benefits that the injured person would have obtained if the violation had not occurred; or
2. the benefits that were earned by the infringer; or
3. the royalties that the infringer would have paid to the rights holder if he had been granted a license that would legally enable him to exploit the industrial property.

It is more common to calculate damages based on the sales of the counterfeiter (see (b)above) or the amount of royalties that would have been paid to the holder if a license were granted (see (c)above), noting that, in both cases, the plaintiff will have to produce evidence on the number of products sold by the counterfeiter to quantify the damages.

As to copyright infringement, the Brazilian Copyright Law sets forth a presumption that, if the number of unlawful copies of a literary, artistic or scientific work is unknown, damages will amount to the value of 3,000 copies, plus the value of the seized products. However, this legal presumption has not been applied by the courts in all cases.

State courts usually have jurisdiction to hear counterfeiting cases, and, in some places, there are courts specialized in industrial property. Typically, the rights holder first sends a cease and desist letter to the infringer (but this is not mandatory) and subsequently brings an infringement action aggregated with a claim for damages and a preliminary injunction request.

The sale and distribution of gray market goods are prohibited in Brazil, which has adopted the national exhaustion of intellectual property rights regime. Pursuant to Article 132, item III, of the Industrial Property Law, the trademark owner cannot prevent the free circulation of products placed on the internal market by themselves or by others with their consent.

An issue that arises is whether the consent that leads to the exhaustion of rights must be express or tacit. The Superior Court of Justice has held that consent to parallel importation may be given tacitly by the trademark owner, which may be inferred from their inaction, where it is indisputable that they had knowledge of the importation carried out by the importer for a long time.

One way to avoid the inference of tacit consent is to include provisions prohibiting the exportation of goods to Brazil in license and distribution agreements, but trademark owners are also encouraged to adopt measures to gain better control over parallel imports such as implementing product control and tracking procedures.

Moreover, trademark owners are advised to pursue civil measures against parallel importers as soon as they get notice of the importation. Criminal penalties for crimes against trademark registration are not applicable in this situation. Since parallel importers sell genuine branded goods, they are not committing any of the acts prescribed by Articles 189 and 190 of the Industrial Property Law (see above, Section 1.1).

With regard to counterfeit goods, it is important to highlight that consumer protection legislation and the law on tax and economic crimes also contain provisions that can be used against infringers, so there are broad grounds to protect intellectual property rights in Brazil.

The decision on whether to pursue civil or criminal measures must be taken in light of the particularities of each case, taking into account the main objectives of the rights holder.

Criminal enforcement of intellectual property rights is quite effective, even when the identity of the infringer is unknown, but imprisonment is rarely imposed by courts, since the Criminal Code authorizes the replacement of this penalty with community service and a fine (when there is no violence, the criminal sanction does not exceed four years and some other legal requirements are met).

Similarly, civil enforcement has the benefit of ceasing the infringement immediately by means of an ex parte preliminary injunction, but it also provides for compensation for the losses suffered by the rights holder. However, the quantification of damages may be a challenge if the counterfeiter does not keep business records. Even if such evidence is available, it may still be difficult to collect damages if the counterfeiter does not have enough funds.

The methods of digital content piracy adopted in Brazil are basically the same as the ones utilized around the world, so for the purposes of this book it is interesting to make some comments on the sale of physical counterfeit goods whether in physical stores or on marketplace platforms and social networking sites.

Even though counterfeit products are also produced in Brazil, the vast majority are known to be imported from other countries, mainly China. As Brazil has a long territorial extension, effective border control is a challenge for national authorities. However, inspection at the main ports of entry has increased significantly over the years as authorities are committed to combat piracy in view of the substantial financial losses caused to the country and the health and safety threats posed to consumers.

As a result, counterfeiters are always thinking of ways to circumvent border control. Since China is known to be the main supplier of illegal products, counterfeiters are constantly changing the routes and first shipping counterfeits to other Latin American countries, such as Paraguay, Bolivia, Suriname, Guiana, and French Guiana, before sending them to Brazil to divert the attention of customs authorities.

In addition, with the increase in online shopping, counterfeit goods are reaching the country through individual deliveries by mail, which are not easily detected. The Federal Revenue has already conducted several operations in postal distribution centers throughout the country to seize counterfeit products, but the number of deliveries is high, and it is not possible to monitor all operations, which highlights the importance of the role of marketplace platforms in supervising sales.

In relation to large shipments of products, to circumvent border control, some counterfeiters are shipping goods without brand identification and sending the counterfeit labels separately by mail, which are later affixed to the products within the national territory. Unless there is evidence to the contrary, these shipments end up being cleared by customs and the counterfeit products are placed on the market.

According to the Global Organized Crime Index published by the Global Initiative Against Transnational Organized Crime (GI-TOC) in 2023, Brazil is in 23rd position in the global ranking of trade in counterfeit goods out of a total of 193 countries. Spirits, clothing, perfumes, medicine, automotive parts, electronic devices, and mobile phones are the major counterfeit products, which are usually produced in China and exported to other Latin American countries before being shipped to Brazil.

The 2023 Annual Report prepared by the Brazilian Association for the Combat of Piracy (Associação Brasileira de Combate à Falsificação (ABCF)) reveals that 35% of counterfeits are sold on online marketplaces and social networking websites. Since the COVID-19 pandemic, online shopping has increased year by year (from BRL 89 billion in 2019 to BRL 185 billion in 2023) (see https://dados.abcomm.org/crescimento-do-ecommerce-brasileiro), so counterfeit activity is shifting from brick-and-mortar businesses to online marketplaces and social media platforms.

In 2021, live shopping was introduced in Brazil and more and more products are being promoted and sold through live video streams. As products are displayed only during the live sessions, rights holders are facing the same challenges posed in other countries regarding tracking the counterfeit products and identifying the counterfeiters, who operate on social media platforms, as they can easily hide behind fake or anonymous accounts.

Another trend that has also hit Brazil is “dupe culture” and “knockoff culture”, largely supported by Generation Z (Gen Z). Motivated mainly by product affordability, people born between the late 1990s and the early 2010s are intentionally purchasing duplicates and knockoff goods. Having grown up in the digital age, Gen Z’s consumer decision-making is highly influenced by social media, and “dupe culture” and “knockoff culture” have been largely promoted on platforms like TikTok and Instagram. As a result, this large proportion of the Brazilian population is purchasing counterfeit goods, whether online or in physical retail stores.

Currently, the liability of internet application providers for damages resulting from third party content is regulated by the Internet Bill of Rights (Law no. 12.965/2014), which establishes that such companies are held civilly liable only if they do not comply with a court order requiring the removal of the illegal content from the platform. This rule is not applicable to copyright infringement; in this case, such providers are liable for damages if they fail to remove the infringing content after being notified by the copyright holder about the infringement (“notice and takedown” regime).

However, new legislation has been proposed to expand the responsibility of internet application providers. A draft amendment to the Civil Code was formally submitted to the Senate on April 14, 2024, which proposes the revocation of the Internet Bill of Rights provision on internet application providers’ liability, making them responsible for third-party content advertised on platforms or that infringes intellectual property rights (not only copyrights) regardless of a court order requiring the removal of the illegal content. 

The main goal of the reform is to ensure that internet application providers are more vigilant in vetting content posted on digital platforms and removing infringing content, including counterfeits sold on marketplaces.

There have not been major changes in the enforcement of intellectual property rights in Brazil, so rights holders can still count on a well-structured legal framework for the protection of such rights. Besides pursuing criminal and civil remedies against counterfeit sellers and networks, rights holders can utilize border enforcement measures and administrative procedures to protect their intellectual property rights.

The specific circumstances of each case and the ultimate goals of intellectual property owners should be considered when determining the most cost-effective strategy to tackle an infringement. The adoption of provisional measures to cease the infringement immediately is usually the first step as proceedings are time-consuming.

Rights holders are advised to monitor online marketplaces where counterfeit products are usually offered for sale. The most popular e-commerce platforms in Brazil are:

• Mercado Livre (www.mercadolivre.com.br).
• Magazine Luiza (www.magazineluiza.com.br).
• Amazon (www.amazon.com.br).
• Americanas (www.americanas.com.br).
• Shopee (www.shopee.com.br).
• Shein (https://br.shein.com).
• AliExpress (https://pt.aliexpress.com).

Most of these marketplace websites have brand protection programs or abuse report channels through which rights holders can request the removal of any listings that infringe their intellectual property rights. The reporting tools are quite effective and usually result in takedowns and in the termination of the offenders’ account.

Emerging platforms are also posing new challenges to intellectual property holders. In June 2022, the Ministry of Justice and Public Security of Brazil announced that the first search-and-seizure had been carried out on the metaverse as part of a criminal investigation into illegal streaming of music and audiovisual works. As the court proceedings are sealed, no details of the operation were revealed, but this is an indication that infringements are also being committed in the virtual space.

Brazil does not have specific legislation addressing the online sale of counterfeit goods, but the remedies mentioned above can also be utilized by rights holders against online counterfeiters.

The Internet Bill of Rights (Law no. 12.965/2014) sets out principles, guarantees, rights, and duties for internet use in Brazil and regulates the liability of internet application providers for damages resulting from content produced by third parties. Such providers may be held civilly liable only if they do not comply with a court order that requires the removal of the illegal content from the platform.

However, this rule is not applicable to copyright infringement where the courts have been applying the “notice and takedown” regime, holding internet application providers liable for damages if they fail to remove infringing content after being notified by the copyright holder about the infringement.

If an online infringer also has a physical storefront, the rights holder usually pursues criminal and/or civil measures on both the online and physical fronts. In the case of criminal enforcement, the involvement of law enforcement on both fronts does not depend on the quantities of counterfeit goods at issue or even their type.

Finally, note that the Copyright Law prohibits the circumvention of technological protection measures, providing for the forfeiture of devices used to circumvent such measures, without prejudice to the payment of damages for the losses caused to the rights holder.

In view of the COVID-19 pandemic, online shopping has increased significantly in recent years. As a result, fraudulent websites are widespread and cyber-attacks using social engineering tactics are common. Scammers usually send phishing emails, instant messages or text messages infected with malicious links or files, seemingly from reliable sources, to lead the victims to fake websites and steal their personal and financial information.

Typo squatting and the registration of domain names confusingly similar to registered trademarks are the tactics most commonly adopted. Also, in view of the resemblance to the well-known “.com” domain, fraudsters are also using the country code Top-Level Domain (ccTLD) “.co” (Colombia) to commit cyber-attacks. Interestingly, the World Intellectual Property Organization (WIPO) announced that domain name disputes involving the ccTLD “.co” were at the top of the ccTLDs ranking in 2023.

New TLDs certainly create more opportunities for fraudulent networks to create fake websites and web shops. However, the new TLDs are not as popular as the generic Top Level Domains (gTLDs) and ccTLDs, so the number of cybersquatting cases involving the former is not as high.

In relation to disputes over the “.br” ccTLD, these are subject to a dispute resolution policy similar to the one that has been adopted by the Internet Corporation for Assigned Names and Numbers (ICANN). Basically, the complainant must demonstrate that the domain name has been registered and is being used in bad faith and that one of the following elements is present: 

• the domain name is identical or confusingly similar to a trademark or service mark owned by the complainant, which has been applied for or registered before the registration of the domain name; or
• the domain name is identical or confusingly similar to a trademark or service mark owned by the complainant, which has not been applied for or registered in Brazil, but is well known in its field of activity; or
• the domain name is identical or confusingly similar to a name of a commercial establishment, tradename, civil name, family or patronymic name, well-known pseudonym, artistic name, or even another domain name in which the complainant has prior rights.

The proceedings can be administered only by approved dispute resolution service providers, such as WIPO, and can result in the cancelation, transfer or retainment of the domain name.

Brazil has one of the greatest numbers of social media platform users in the world, so social media is an important tool for promoting products. Social media platforms like Facebook and Instagram are very popular and have been used for commerce. Instead of creating an e-commerce platform, many small companies make sales through social media.

However, social media has become a critical tool for bad actors in Brazil. Counterfeiters use social media platforms to advertise counterfeit products that are sold through WhatsApp, on proprietary websites or on online marketplaces.

In a great number of cases, even when reported for intellectual property violation, the infringing content is not easily taken down by social media platforms. Not even cease and desist letters achieve the intended outcome, so rights holders usually have to obtain a court order to compel the platforms to immediately remove or disable access to the infringing material.

As new technologies emerge, intellectual property holders face new challenges in defending their rights. Unfortunately, cases of copyright infringement have already occurred in Brazil involving non-fungible tokens and similar cases will probably be seen in the virtual space.

Brazil is attentive to new and evolving technologies, and there is currently discussion regarding the regulation of the use of artificial intelligence (AI). Inspired by the European AI Act, Bill no. 2.338/2023 establishes general national standards for the development, implementation, and responsible use of AI systems in Brazil, with the aim of protecting fundamental rights and ensuring the implementation of safe and reliable systems for the benefit of human beings, the democratic regime and scientific and technological development.

Similarly to the European AI Act, the proposed regulation sets out obligations for providers and users of AI in a professional capacity based on its potential risks. AI systems are classified into two categories: 

• excessive-risk AI systems; that is, systems that adopt subliminal techniques that induce individuals to behave in a harmful or dangerous way to their health or safety, systems that explore the vulnerabilities of natural persons such as those related to age, physical or mental disorders, and government-run systems that categorize individuals based on social behavior or personal traits in an illegitimate or disproportional way; or
• high-risk AI systems; that is, systems used for the purposes listed by law, including biometric identification, management of critical infrastructure, recruitment or selection of employees, and access to essential public and private services.

Under the bill, excessive-risk AI systems are banned, whereas high-risk AI systems are subject to specific governance measures capable of guaranteeing the security of the systems and the protection of the individual rights of the people affected. Before being placed on the market or used in service, every AI system will undergo a preliminary assessment carried out by the provider to classify its level of risk.

In 2023, a number of public hearings were held by Congress to discuss the impacts of AI on different sectors, such as the industrial, agricultural, public, financial, academic, and judicial sectors, and to date, 145 amendments to the proposed regulation have been presented, including revision of the provisions on the level of risk classification. The bill is expected to be passed in 2024 and, after approval, the new law will probably come into effect one year after its publication in the Official Gazette of the Federal Government.

The Brazilian Data Protection Authority (ANPD) has analyzed the proposed bill and issued an opinion pointing out the need to align the prospective law with the Brazilian General Data Protection Law (Law no. 13.709/2018). The bill provides that the federal executive branch will appoint a competent authority to ensure the implementation and supervision of AI regulation, and the ANPD is proposing to assume this role in view of the clear intersection between AI and data protection. The opinion draws attention to the benefits of having a single authority responsible for the implementation, monitoring, and supervision of AI systems, which assures that AI law will be consistently applied throughout the territory, avoiding regional and sectoral disparities that could create gaps or regulatory overlaps.

Whichever competent authority is appointed to implement and supervise AI regulation will be required to ensure that the provisions of the prospective AI law will be applied without prejudice to the data protection rights guaranteed by the Brazilian General Data Protection Law. AI regulation reinforces citizens’ privacy and data protection rights, and prohibits discriminatory uses of AI based on personal data, including sensitive personal data revealing racial or ethnic origin, sexual orientation and religion, among others.

While the prospective AI law is being discussed in Congress, the Bar Association of the State of Acre, one of the 26 States of Brazil, approved a local regulation on the use of AI by lawyers. Resolution no. 49/2023 establishes guidelines and principles for the responsible and ethical use of generative AI in the practice of law in the State of Acre. Interestingly, one of the principles of this local regulation is human control over the use of AI, which requires legal professionals to evaluate and validate the results generated by AI to ensure accuracy of the work and compliance with ethical and legal rules.

There is no national regulation on the matter, but the subject is being discussed by the Federal Council of the Brazilian Bar Association.

As technology evolves, new challenges are posed to society, and it is no different with AI. The use of AI-generated or manipulated images, audios or videos for malicious activities is a reality in most countries and the number of deepfake incidents has increased significantly in recent years.

According to the Identity Fraud Report published by the verification platform Sum and Substance Ltd (UK) in 2023, the growth in the number of deepfakes in Latin America amounted to 411% from 2022 to 2023 and almost half of all reported incidents occurred in Brazil. Politicians, artists, digital influencers, and news anchors are the most common victims of deepfakes, but private persons are not immune to this threat.

In view of the harmful effects of deepfakes on the electoral process, the Brazilian Superior Electoral Court has recently amended Resolution no. 23.610/2019 on political advertising to expressly prohibit the manipulation of audio or video content for the replacement or alteration of the image or voice of a living, deceased or fictitious person, even with authorization. Internet application providers are jointly and severally liable for damages resulting from deepfakes if they fail to comply with court orders that require the removal of the infringing material, the suspension of users’ accounts or any other actions.

Except for the resolution on political advertising mentioned above, there is no specific legislation addressing deepfakes, but existing laws provide for criminal and civil remedies that protect brand owners if they are affected by such malicious practices. As time is of the essence, civil enforcement of intellectual property rights has the benefit of ceasing the infringement immediately by means of an ex parte preliminary injunction, but criminal remedies may also be effective depending on the circumstances of the case.

Legislation on crypto technology is just starting to develop in Brazil. In terms of regulation, the biggest advances are in the financial area.

Law no. 14.478/2022 establishes guidelines to be observed in the provision of virtual asset services and in the regulation of virtual asset service providers’ activities. In summary, the law regulates the cryptocurrency market, which must be supervised by the Brazilian Central Bank (Decree no. 11.563/2023). It also criminalizes the commission of fraud using virtual assets and increases the penalties for committing money laundering with crypto assets.

There are some bills currently being discussed in Congress that aim to regulate the use of crypto technology in public and private spheres. One of these is the draft amendment to the Civil Code that was formally submitted to the Senate on April 14, 2024. It proposes the inclusion of a section regulating agreements entered into by digital means, with a specific provision on smart contracts.

The proposed regulation on smart contracts will bring legal stability and benefit intellectual property holders, since blockchain technology enhances intellectual property protection by providing digital content authentication, immutable ownership records, automated royalty payments and transparency in licensing agreements, among other benefits.

In Brazil, protection of intellectual property rights against the streaming of content piracy is basically provided for by the Copyright Law (Law no. 9.610/1998) and the Criminal Code. 

Copyrights are broadly protected by the Copyright Law, which grants to rights holders the exclusive right to use, enjoy and dispose of any literary, artistic, or scientific work. The unauthorized use of a copyrighted work, by any means, constitutes copyright infringement and is subject to civil and criminal penalties. Therefore, illegal copying or distribution of copyrighted material is strictly prohibited regardless of the medium of the infringement.

Even though copyright protection is outlined in the Copyright Law, criminal offenses are prescribed by the Criminal Code. Copyright infringement can be punished with detention or imprisonment from three months to four years, as well as with a fine, depending on the wrongdoing. Criminal proceedings can be initiated by rights holders (private complaint), or by the Public Prosecutor’s Office (unconditional public prosecution or public prosecution conditional on the victim’s representation) as the case may be. 

Site blocking orders are largely issued by Brazilian authorities not only to combat digital content piracy, but also disinformation (fake news) and other crimes. Injunctions, search-and-seizure of equipment utilized to commit the infringement, and destruction or forfeiture of the seized equipment are some of the remedies that exist in Brazil to protect intellectual property rights. When it comes to digital content piracy, besides blocking the infringing websites and applications, authorities usually freeze bank accounts of infringers, require the deindexation of content in search engines and order the removal of profiles on social media to prevent the pirated content being streamed.

QR code abuse tactics in online phishing scams are being reported worldwide. “Quishing”, as QR code-based phishing is being called, poses more risks to individuals and organizations since QR codes are scanned using mobile devices, which are more vulnerable to attacks as they usually do not have enough security tools to detect and block malicious links.

There are no official numbers of QR code phishing attacks in Brazil. However, as the use of such codes in commercial transactions is becoming more popular, mainly because of the latest method of instant payment implemented by the Brazilian Central Bank called “Pix” (by which funds are transferred in a few seconds between transactional accounts also through a QR code), cases of “quishing” are growing.

Individuals are advised to adopt security measures to reduce the risk of becoming victims of “quishing” attackers by giving inadvertent access to their personal and financial information, whereas brand owners are encouraged to use trusted QR code generators to avoid the brand being associated with phishing scams.

In Brazil, rights holders can rely on border enforcement measures to protect their intellectual property at ports of entry. 

The detention of suspected shipments of counterfeit products can be performed ex officio by Customs or the rights holder can request this where there is a reasonable suspicion supported by articulable facts. Once the detention is ordered, the customs authority notifies the rights holder to prepare a report on its authenticity within 10 working days, which can be extended for the same period in certain circumstances. If the goods are not authentic, the rights holder may request the seizure and destruction of the counterfeit products or take applicable court action to enforce their IP rights against the importer. If the rights holder fails to take action, the goods are released by Customs provided that all other legal requirements are met.

The detention, seizure, handling, storage and destruction of counterfeit products are conducted by the federal authorities, and the rights holder does not bear the costs of such measures. Customs does not disclose the identity of the importer, but this can be obtained through a court action. All the remedies discussed above are available against importers caught importing counterfeit products.

In 2013, the National Council for the Combat of Piracy and Crimes against Intellectual Property and the Brazilian Trademark Office worked together in the creation of the National Directory for the Combat of Trademark Counterfeiting, which aims to facilitate contact between public authorities and owners of marks registered in Brazil and assist the former in determining IP infringement. 

Brand owners can appoint an attorney to represent them before Customs, law enforcement and other authorities involved with anti-counterfeiting cases, as well as to provide non-confidential strategic information for combating illegal activities, such as product identification guides, comparative examples of original v. fake products and reports on the marks most frequently subject to counterfeiting.

On June 17, 2024, the Brazilian Trademark Office announced that public authorities now have easy access to the contact information of representatives appointed by brand owners to represent them in anti-counterfeiting cases, which are now publicly available on the National Directory platform (see www.gov.br/inpi/pt-br/projetos-estrategicos/combate-a-falsificacao-de-marcas/copy_of_cadastro-de-representantes-das-marcas-para-fins-de-combate-a-falsificacao).

Rights holders can also make direct contact with the Customs agencies to provide more detailed information on the counterfeit products and to train the agents up on the matter, in order to maximize IP protection at the borders. 

Note that customs control is carried out by the Brazilian Federal Revenue Service, which has its own agents who make infringement determinations at ports of entry. Nevertheless, counterfeiting raids within the national territory are usually performed by the Brazilian Federal Revenue Service with the collaboration of law enforcement agents.

As a result of the COVID-19 pandemic, the number of counterfeit products seized in 2020 decreased significantly, but counterfeiting expanded into the online market as the pandemic has driven consumers to online shopping. In 2021, with the start of the economic recovery, seizures grew strongly again and returned to pre-pandemic levels.

Interestingly, the type of products seized has changed due to the COVID-19 pandemic. Cigars, apparel, electronic devices, toys, handbags, sneakers and eyeglasses are some of the goods usually seized in Brazil, but since 2020 there has been an increase in the seizure of personal care equipment and other goods related to the pandemic.

There is no national intellectual property law enforcement coordination body in Brazil. 

However, in 2004, the Ministry of Justice and Public Security created the National Council for the Combat of Piracy and Crimes against Intellectual Property (CNCP), a consulting government entity that establishes guidelines for the formulation and proposition of a national plan to combat piracy, tax evasion and crimes against intellectual property.

On December 3, 2021, the National Plan to Combat Piracy was released by the Ministry of Justice and Public Security. One of the main goals of such a plan is to tackle online counterfeiting by promoting interaction and coordination between public agents, implementing measures to prevent and reduce counterfeiting, and raising public awareness of the issue.

6.1 Are proceedings time-consuming?

Proceedings are usually time-consuming, but there are provisional measures that can bring immediate results if all the legal requirements are met.

6.2 Is there a time limit for commencement of civil proceedings?

In the case of a damages claim, the copyright holder has three years to commence civil proceedings, while an industrial property right holder has five years from the date of the infringement. With regard to injunctive relief, there is a 10-year period to bring an action against the counterfeiter. This period restarts daily if there is continuous infringement.

6.3 Where should a civil action be filed?

The general rule is that a civil action must be brought in the judicial district where any defendant is domiciled. However, if there is a damages claim, the plaintiff can file the case in the judicial district where they reside or where the illegal act has been committed.

As mentioned previously, there are several bills being discussed in Congress that aim to strengthen the protection of intellectual property rights in Brazil. Besides addressing the impacts of new and evolving technologies on society, the country is highly committed to combating piracy. 

On April 30, 2024, the creation of the Parliamentary Front in Defense of Intellectual Property and Combating Piracy was announced. Its objectives are to develop a new legal framework on intellectual property and combat counterfeiting. Therefore, there is scope to discuss the current law and propose changes to it, and to tackle the main pitfalls surrounding the protection of intellectual property rights in Brazil.

In Brazil, there are several active organizations and government entities that support brand owners in the protection of intellectual property rights, such as:

• the National Council for the Combat of Piracy and Crimes against Intellectual Property (CNCP), a consulting government entity that establishes guidelines for the formulation and proposition of a national plan to combat piracy, tax evasion and crimes against intellectual property (see www.gov.br/mj/pt-br/assuntos/sua-protecao/combate-a-pirataria);
• the Cyber Operations Laboratory (Laboratório de Operações Cibernéticas – Ciberlab) of the Ministry of Justice and Public Security (Ministério da Justiça e Segurança Pública), a government body that assists in the investigation of virtual crimes (see www.gov.br/mj/pt-br/acesso-a-informacao/institucional/sumario/quemequem/secretaria-nacional-de-seguranca-publica);
• the Brazilian Intellectual Property Association (Associação Brasileira da Propriedade Intelectual – ABPI), a non-profit organization that disseminates information and discusses the importance of intellectual property in Brazil and has prepared recommendations and opinions on improving local legislation (see www.abpi.org.br/en/abpi-home/);
• the Intellectual Property Association of São Paulo (Associação Paulista da Propriedade Intelectual – ASPI), a non-profit organization whose objective is to disseminate information on intellectual property and promote the continuous improvement of legislation and jurisprudence on the matter, which has organized a series of events to raise awareness and discuss important topics concerning intellectual property (see www.aspi.org.br);
• the Brazilian Association of Reprographics Rights (Associação Brasileira de Direitos Reprográficos – ABDR), a non-profit organization that defends copyrights and editorial rights, and actively represents its associates before courts to combat piracy (see www.abdr.org.br);
• the Brazilian Association of Music and Arts (Associação Brasileira de Música e Artes – ABRAMUS), a non-profit collective management organization that defends copyrights of musical and performance artists and actively engages with Brazilian authorities to strengthen the legal protection of rights holders (see www.abramus.org.br);
• the Brazilian Pay TV Association (Associação Brasileira de TV por Assinatura – ABTA), a non-profit organization that represents Pay TV services operators (distributors), programmers, equipment suppliers and service providers of video and audio signals broadcast, and actively works with government bodies to combat piracy (see www.abta.org.br).