Da (des)necessidade da efetiva confusão para a tutela das marcas no Brasil: uma análise frente a implementação do Teste 360º pelos Tribunais brasileiros

Abstract

This paper aims to examine whether the actual occurrence of confusion between trademarks is an essential requirement for the granting of legal protection under Brazilian trademark law. Through both theoretical and practical approaches, the study explores the foundations of trademark law, the legal requirements for registration, and the special protections granted to well-known and highly reputed marks. It then delves into the concept of confusion between distinctive signs, analyzing its various forms—direct confusion, confusion by association, initial interest confusion, reverse confusion, and post-sale confusion—as well as the different stages at which such confusion may arise in the consumer's experience. To support this analysis, the study employs the 360° Test, a methodology adopted by Brazilian courts and the National Institute of Industrial Property (INPI) to assess the likelihood of confusion from a global, practical, and sensory perspective. Finally, the work presents a case law analysis of recent judicial decisions to determine whether the mere likelihood of confusion or brand dilution is sufficient to justify trademark protection, even in the absence of proven, actual confusion. The findings suggest that the Brazilian legal system allows for preventive trademark protection, particularly when there is a concrete risk to the mark’s distinctiveness and to fair market competition.