The INPI has opened Public Consultation INPI nº 01/2026 to discuss the new registration criteria applicable to position marks — trademark signs constituted by the way an element is positioned on a product. Interested parties have until July 24, 2026 to submit contributions.
The consultation was published on June 9, 2026 in the Official Gazette of the Union (issue 105, section 1, page 127) and in the Industrial Property Journal nº 2892, Notices section. The INPI has made two drafts available for analysis: the normative act that will establish the new criteria and the examination guidelines that will be integrated into the Trademark Manual.
What are position marks?
Position marks protect the specific location of an element applied to a product when that position, in itself, confers distinctiveness to the sign. They differ from three-dimensional marks (which protect the shape of the product itself) and figurative marks (which protect the design or logo regardless of where they are applied).
International classic examples include:
- Adidas’ three stripes on the side of footwear and clothing
- Christian Louboutin’s red sole
- Levi’s back pocket stitching design
In Brazil, the recognition of position marks as an autonomous category of trademark sign has been the subject of legal and doctrinal debate for years. The INPI has already been analyzing applications of this nature based on administrative precedents, but without a clear normative framework — a gap that this public consultation aims to fill.
What does Public Consultation nº 01/2026 propose?
The INPI seeks to standardize and bring predictability to the examination of position marks with two documents:
| Document | Purpose |
|---|---|
| Draft normative act | Defines registrability criteria, formal requirements, and grounds for non-registrability |
| Draft examination guidelines | Guides INPI examiners in the concrete analysis of applications, with examples and technical parameters |
Among the points that should be included in the draft are:
- Requirement of intrinsic distinctiveness: the position must be capable of identifying the origin of the product or service, not being merely functional or ornamental
- Proof through use: possibility of proving acquired distinctiveness (secondary meaning) when the position is not intrinsically distinctive
- Limitation to non-functional elements: the position cannot derive from a technical or functional characteristic necessary for the product
- Graphic representation: requirement of visual elements that clearly show the claimed position, such as dashed lines indicating the outline of the product
Why does this matter?
The regulation of position marks has direct practical implications for companies that invest in applied visual identity for products. Sectors such as:
- Fashion and apparel (position of logos, stitching, labels)
- Electronics (position of buttons, cameras, connectors)
- Automotive (position of emblems, grilles, headlights)
- Cosmetics and packaging (position of stripes, embossing, textures)
…may benefit from clear and predictable criteria to protect distinctive elements that currently depend on case-by-case decisions.
The consultation also fits into the INPI’s broader effort to modernize its procedures and align Brazilian practice with international standards. Countries such as the United States, the United Kingdom, and members of the European Union have recognized position marks for years, and the Madrid Protocol (which Brazil has been a signatory to since 2019) allows their registration via the international system.
How to participate
The process is simple and open to any interested party — companies, associations, IP offices, academia, and citizens:
- Access the INPI Public Consultations page at gov.br/inpi/servicos/marcas/consultas-publicas
- Download the drafts of the normative act and examination guidelines, available in .doc and .odt formats
- Fill out the specific form, inserting comments in the field corresponding to each article or item
- Send to [email protected] by July 24, 2026
Important rules:
- Comments must specifically address the subject matter of each article or item
- Strictly administrative comments are accepted only to point out textual inconsistencies
- Submissions made after the deadline or through other means will not be considered
- A single form is recommended for associations, committees, or institutions that submit joint comments
After the deadline, the INPI will consolidate the responses and publish the final text of the normative act and the examination guidelines in the Trademark Manual.
What to expect
The public consultation represents an opportunity for the Brazilian IP community to directly contribute to the formulation of a regulatory framework that will affect the examination of position mark applications for years to come. For those working with trademark strategy and portfolio management, this is the time to study the drafts and assess whether the proposed criteria meet market needs.
Active participation of society in IP regulation strengthens legal certainty and predictability of INPI decisions — two fundamental pillars for the competitiveness of the Brazilian innovation system.
If you are not yet familiar with the costs involved in trademark registration in Brazil, check out our complete guide on how much it costs to register a trademark with the INPI in 2026. To understand the impact of the exhaustion of priority processing quotas for trademarks in e-commerce, also read INPI exhausts priority processing quotas for trademarks in e-commerce.
Read also:
- How Much Does It Cost to Register a Trademark with the INPI in 2026? [Full Table]
- INPI exhausts priority processing quotas for trademarks in e-commerce — what now?
- How Much Does It Cost to Register a Trademark with the INPI in 2026? [Full Table]
Feel free to get in touch to discuss this and other topics at [email protected]