Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 3, 1888, Part I

No. 59.
Mr. Jarvis to Mr. Bayard.

[Extract.]

Legation of the United States,
Petropolis, May 12, 1888. (Received June 8.)

No. 128.]

Sir: Referring to my No. 126, of April 18, 1888, I now have the honor to inclose the translation made by Mr. Williams, the secretary of the legation, of the law concerning trademarks.

I am, etc.,

Thos J. Jarvis.

[Inclosure in No. 128.—Translation.]

Law of Brazil concerning trade-marks.

Decree No. 3346, of October 14, 1887, establishing rules for the registry of marks of manufacture and trade.

The Princess Imperial Regent, in the name of the Emperor, thinks fit to sanction and order to be enforced the following resolution of the general assembly:

Article 1.

The producer or merchant has the right to distinguish his merchandise or products by means of special marks.

Article 2.

Industrial and trade marks may consist of everything which this law does not prohibit (Art. 8), and which may distinguish articles from others, identical or similar, of different origin.

Any name, special or common, denomination, partnership, designation, or signature and letters or ciphers only, will serve for this purpose, if invested with a distinctive form.

Article 3.

In order to secure the exclusive use of said marks, their registry, deposit, and publication according to this law are indispensable.

Article 4.

The commercial junta (council) or inspectoria (board of inspection) of the locality of the establishment, or of the principal one when more than one of the same kind belong to only one owner, is competent for the registry. The commercial junta of Rio de Janeiro is also competent for the registry of foreign marks and as the central depository of those registered in other juntas or inspectorias.

Article 5.

To effect the registry, a petition from the party interested, or his special attorney, is necessary, accompanied by three samples of the mark, containing:

(1) A representation of what constitutes the mark, with all its accessories and explanations.

(2) A declaration of the product of industry or trade for which it is designed, the ‘occupation of the petitioner, and his place of residence.

Article 6.

The secretary of the junta, or the employé of the inspectoria appointed for that purpose, shall certify on each of the models the day and hour of its presentation, and, should the registry be ordered, he shall deposit one of them in the archives, and deliver the others to the parties interested with a note of the registry and its number.

Article 7.

Within thirty days the party interested shall publish, in the newspaper that inserts the acts of the general or provincial government, the certificate of registry containing the explanation of the characteristics of the mark, copied from the declaration required by article 5, No. 1, and within sixty days (reckoning these terms from the date of the said registry) he shall deposit one of the models in the commercial junta of Rio de Janeiro, according to article.4.

Article 8.

The registry of a mark is prohibited which contains or consists of:

(1) Coats of arms, armorial bearings, decorations or insignia, public or official, domestic or foreign, when their use has not been duly authorized.

(2) A commercial or partnership name which the petitioner can not lawfully use.

(3) The indication of a fixed locality or establishment which is not that bf the origin of the article, whether there be joined to this indication a fictitious name or another’s name or not.

(4) Words, images, or representations which involve offense to individuals or to public decorum.

(5) The reproduction of another mark already registered for an article of the same species.

(6) Total or partial imitation of a mark already registered for a product of the same species and which may mislead or confuse the buyer. The possibility of error or confusion will be considered to be verified whenever the differences of the two marks can not be recognized without comparison or attentive examination.

Article 9.

In registry the following [rules] shall be observed:

(1) Priority in the day or hour of the presentation of the mark establishes preference as to registry in favor of the petitioner; incase of the simultaneous presentation of two or more identical or similar marks the preference of that one will be admitted which has been used or possessed for the longest time; and in default of this requisite none will be registered without being modified by the parties interested.

(2) In case of doubt as to the use or possession of a mark the junta or inspectoria will order the parties interested to settle the question before the commercial tribunal, and they will then proceed to registry in conformity with the judgment.

(3) Should identical or similar marks, as set forth in article 8, Nos. 5 and 6, be registered in different juntas or inspectorias the one which is prior in date shall prevail; and in case of simultaneous registry each of the parties interested can apply to the said commercial tribunal; that shall decide which shall be maintained, having in view the provisions of No. 1 of this article.

(4) The junta or inspectoria, to which shall be presented a certificate that the action is pending to which reference is made in the preceding number, shall at once order the registry to be suspended till the final decision of the cause, which resolution shall be published in the official journal at the cost of the party interested.

Article 10.

From the decision refusing registry an appeal with suspensive effect can be made to the court of appeals of the district, in conformity with regulation No. 143, of March 15, 1842.

Like appeal against the admission of the mark can be made by:

(1) Any one who considers himself prejudiced by it, as regards some registered mark.

(2) The party interested in the cases named in article 8, Nos. 2 and 3.

(3) The party offended in the cases named in No. 4, first part.

(4) The public prosecutor in the two Nos. 1 and 4, last part.

The term allowed for making these appeals shall be five days, reckoning from the publication of the decision; but if the party does not reside in the place where the decision was made, and if there is no special prosecuting officer there, the term shall commence to run thirty days later.

Article 11.

Neither the failure to make an appeal nor its postponement shall destroy the right of any other party to bring suit in conformity with the preceding article.

(1) For procuring the nullification of the registry made contrary to the provisions of article 8.

(2) To oblige the competitor, who is entitled to the same or a similar name, to modify it so that error or confusion may be impossible (article 8, No. 6, last part).

This action can only be brought by one who can prove prior possession of the mark or name for commercial or industrial use, though he has not registered it; and it expires by limitation, like that referring to article 8, Nos. 2, 3, and 4, first part, if not brought within six months after the registry of the mark.

Article 12.

The registry shall be valid for all purposes for fifteen years, at the end of which it can be renewed, and so on thereafter.

The registry shall be regarded as null and void if the owner of the registered mark shall not make use of it within the term of three years.

Article 13.

The mark can only he transferred with the product of industry or trade for which it has been adopted after a suitable note has been made in the register on view of authentic documents.

A like note shall be made should the firms be altered and the mark still continue to be used. In both cases publication is necessary.

Article 14.

The following persons shall be punished with imprisonment from one to six months and a fine for the use of the State of 500 to 5,000 milreis.

(1) Whoever reproduces wholly or in part, by whatever means, any industrial or trade mark duly registered and published without the authority of the owner or his legal representative.

(2) Whoever uses a mark belonging to another, or forged, as set forth in No. 1.

(3) Whoever sells or offers for sale articles bearing a mark wholly or partly forged, or belonging to another.

(4) Whoever imitates an industrial or trade-mark in such a manner that the buyer may be deceived.

(5) Whoever uses a mark so imitated.

(6) Whoever sells or offers for sale articles bearing an imitated mark.

(7) Whoever uses a commercial name or firm which does not belong to him, whether it forms part of a registered mark or not.

§ 1. To constitute the imitation referred to in Nos. 4 to 6 of this article it is not necessary that the resemblance of the mark should be complete. It is sufficient, whatever the differences, that there should be a possibility of mistake or confusion, as set forth in article 8, last part.

§ 2. The usurpation of the commercial name or firm referred to in No. 7 shall be considered as existing, whether the reproduction be entire or whether there be additions, omissions, or alterations, provided that there be the same possibility of mistake or confusion on the part of the buyer.

Article 15.

The following persons shall be punished with a fine of 100 to 500 milreis for the use of the State:

(1) Whoever, without due authority, uses as an industrial or trademark, arms, armorial bearings, or public official insignia, domestic or foreign.

(2) Whoever uses a mark that offends public decorum.

(3) Whoever uses an industrial or trade mark that contains an indication of a locality or establishment which is not that of the place of origin of the merchandise or product, whether there be joined to this indication another’s name or a fictitious one, or not.

(4) Whoever sells or offers for sale merchandise or products bearing marks such as are set forth in Nos. 1 and 2 of this article.

(5) Whoever sells or offers for sale merchandise or products such as are set forth in No. 3.

Article 16.

Whoever uses a mark containing anything personally offensive, or who sells or offers for sale articles bearing such a mark, shall be visited with the penalties of article 237, section 3, of the criminal code.

Article 17.

The criminal action against offenses named in Nos. 1, 2, and 4 of article 15, shall be instituted by the public prosecutor of the district where articles are found which bear the marks therein mentioned.

Every producer of or dealer in a like article, residing in the place whence it comes, and the owner of the establishment falsely indicated, are competent to bring the suit against the offenders named in Nos. 3 and 5; and the party offended, or the party interested, against those named in articles 14 and 16.

Article 18.

Repetition of the offense shall be punished with double the penalties fixed in articles 14, 15, and 16, if ten years have not elapsed since the previous condemnation for any one of the offenses named in this law.

Article 19.

The said penalties do not exempt the delinquents from paying indemnity for the loss caused by them, and which the parties injured can demand by proper suit.

Article 20.

The sentences pronounced on the offenses embraced in this law shall be published in full by the successful party, in the same journal in which the registries were published; otherwise, they shall not be enforced.

Article 21.

The party interested can demand:

(1) A search or inspection to ascertain the existence of forged or imitated marks, or of merchandise or products that contain them.

(2) The seizure and destruction of forged or imitated marks in the workshops in which they are prepared, or wherever they may be found, before they are used for a criminal purpose.

(3) The destruction of forged or imitated marks on the packages or articles bearing them before they are cleared from the custom-house, even though the wrappers and the merchandise or products themselves may be thereby damaged.

(4) The seizure and deposit of merchandise or products bearing a forged or imitated mark, or one indicating a false origin as set forth in article 8, No. 4.

§ 1. The seizure and deposit only take place as preliminaries of an action or in the course of it, and are of no effect if it be not instituted within thirty days.

§ 2. The articles seized will serve to guaranty the payment of the fine and to indemnify the party, for which purpose they will be sold at public auction during the action if they easily spoil, or in case of execution.

Article 22.

Either of the measures referred to in the preceding article will be ordered or granted by the commercial judge whenever the party presents his petition, with a certificate of the registration of the mark (article 6); but in case of search, the judge should observe the formalities prescribed in articles 189 to 202 of the code of procedure and in other legislation in force, and can, when he thinks proper, require security.

The production of the certificate of registry of the mark is unnecessary when the question is as to merchandise or products set forth in article 8, Nos. 1, 2, 3, and 4.

Article 23.

Without the production of the certificate of registry no action shall be admitted for trial in virtue of this law, except that of article 11; but the injured party shall still be entitled to the indemnity due for the appropriation of the mark which he used prior to the registry.

Article 24.

The tribunal competent for the trial of actions referred to in this law is that of the domicile of the defendant, or of the place in which were found the merchandise and products marked with the forged or imitated mark.

The indictment and judgment shall be regulated by law No. 562, of July 2, 1850, and decree No. 707, of October 9, of the same year.

The form of procedure for the actions of article 11 shall be that of articles 236 and the following ones of regulation No. 737, of November, 1850.

Article 25.

The provisions of this law are applicable to Brazilians or foreigners whose establishments are without the Empire under the following requirements:

(1) That there exists between the Empire and the nation in whose territory are the said establishments a diplomatic convention securing reciprocity of guaranty for Brazilian marks.

(2) That the marks have been registered in conformity with local law.

(3) That the respective model and certificate of registry have been deposited in the Junta Commercial of Rio de Janeiro.

(4) That the certificate and explanation of the mark have been published in the Diario Official.

Article 26.

In case of compliance with requirements Nos. 2 to 4 of the preceding article, the provision in article 9, No. 3, shall have effect in favor of marks registered in foreign countries (which signed the convention promulgated by Decree No. 9233, of June 28, 1884, or which approved it) for the space of four months, counting from the day when the registry is made according to local law.

Article 27.

The registry of industrial and trade marks shall be preceded by the payment of fees, which the Government will fix by regulation, not exceeding those paid for registries and annotations of commercial contracts, and 20 per cent, more, part of which will be paid to the Junta Commercial of Rio de Janeiro as compensation for the increase of work which it will have.

Article 28.

The guaranties given by law No. 2682, of October 23, 1875, are applicable to the marks registered in conformity therewith.

Article 29.

The Government will issue the regulations necessary for the execution of this law.

Article 30.

Contrary provisions of law are revoked.

Rodrigo Augusto da Silva, of the council of His Majesty the Emperor, minister and secretary of state for the affairs of agriculture and public works, has concurred in this law and will cause it to be executed.

Palace of Rio de Janeiro, October 14, 1887, and the sixty-sixth year of independence and of the Empire.

Princess Imperial Regent.

Countersigned:

Rodrigo Augusto da Silva

.
Office of the great seal of the Empire:

Samuel Wallace Mac. Dowell.

Dispatched October 19, 1887,

José Julio de Albuquerque Barros.

Registered.

Published in the department of state for the affairs of agriculture, commerce, and public works, October 20, 1887. In the disability of the director of the department of commerce, the chief of section.

Alfredo Augusto da Rocha.

Decree No. 9828, of December 31, 1887, approving the regulation for the execution of law No. 3346, of October 14, 1887, concerning marks of manufacture and trade.

The Princess Imperial Regent, in the name of the Emperor, exercising the prerogative conferred on her by article 102, section 2 of the constitution of the Empire, and for the execution of law No. 3346, of October 14, 1887, which establishes rules for the registry of marks of manufacture and trade, thinks fit to approve the following regulation, signed by the Bachelor Rodrigo Augusto da Silva, of the council of His Majesty the Emperor, minister and secretary of state of the affairs of agriculture, commerce, and public works, who has concurred in it and will order it to be executed.

Palace of Rio de Janeiro, December 31, 1887, the sixty-sixth year of independence and the Empire.

Princess Imperial Regent.

Countersigned

Rodrigo Augusto da Silva.

Regulation referred to in decree No. 9828, of the present date, for the execution of law No. 3346, of October 14, 1887, concerning marks of manufacture and trade.

Chapter I.

preliminary provisions.

• Art. 1. The efficacy of the guaranties established in law No. 3346, of October 14, 1887, in favor of industrial (or manufacturing) and trade marks, depends on the registry, deposit, and publication of said marks. (Law, article 3.)
• Art. 2. Registry will be made in the commercial junta or inspectoria of the locality of the establishment, or of the principal one, if more than one of the same kind belong to only one owner, deposit in the Junta Commercial of Rio de Janeiro, and publication by copying the certificate of registry in the journal that publishes the acts of the general or provincial government, according to whether the place of the establishment, principal or sole, is the capital of the Empire, a foreign country, or some province. (Law, articles 4 and 7.)
• Art. 3. The registry shall be valid for all its effects for fifteen years, on the expiration of which it can be renewed, and so on, thereafter. But it shall be considered void if the owner makes no use of it within three years. (Law, article 12.)
• Art. 4. The guaranties of the cited law No. 3346, of October 14, 1887, are applicable to Brazilians and foreigners whose establishments are outside of the Empire whenever the following requirements concur:

  (1) That between the Empire and the nation in whose territory the said establishments exist there be a diplomatic convention securing reciprocity of guaranties for Brazilian marks.

  (2) That the marks have been registered in conformity with local law.

  (3) That the respective model and certificate of registry have been deposited in the Commercial Junta of Rio de Janeiro.

  (4) That the certificate and explanation of the mark have been published in the Diario Official. (Law, article 25.)

• Art. 5. In favor of marks registered in foreign countries which signed the convention promulgated by decree No. 9233, of June 28, 1884, or which afterwards agreed to it, the provision of article 20 of this regulation is valid for the term of four months, counting from the day when the registry is made according to local law, whenever the requirements indicated in Nos. 2, 3, and 4 of the preceding article have been complied with. (Law, article 26.)
• Art. 6. For the execution of what articles 4 and 5 prescribe, the Government will inform the commercial juntas and inspectorias which nations have concluded with the Empire diplomatic conventions securing reciprocity of guaranties for Brazilian marks and which signed or adopted the convention promulgated by the cited decree No. 9233, of June 28, 1884.
• Art. 7. The industrial or trade mark can only be transferred with the article of industry or trade for which it has been adopted, a suitable note thereof being made in the register on view of an authentic document. Like note shall be made when partnership names are altered, but the mark continues to be used. In both cases publication is necessary in conformity with article 2. (Law, article 13.)
• Art. 8. The guaranties given in law No. 3.346, of October 14, 1887, are applicable to marks registered in conformity with law No. 2682, of October 23, 1875. (Law, article 28.)

Chapter II.

of industrial and trade marks; their registry, deposit, and publication.

• Art. 9. There shall be admitted to registry as an industrial or trade mark whatever distinguishes an article from others, identical or similar, of different origin; also any name, special or common denomination, partnership designation or signature, letter or cipher, if invested with a distinctive form.
• Marks are excepted and can not be admitted to registry which contain or consist of—

  (1) Coats of arms, armorial bearings, decorations, or insignia, public or official, domestic or foreign, when their use has not been duly authorized.

  (2) A commercial or partnership name which the petitioner can not lawfully use.

  (3) The indication of a fixed locality or establishment which is not that of the origin of the article.

  (4) Words, images, or representations which involve offense to individuals or to public decorum.

  (5) The reproduction of another mark, already registered for an article of the same species.

  (6) Total or partial imitation of a mark already registered for a product of the same species and which may mislead or confuse the buyer.

• Secondary paragraph.—The possibility of error or confusion will be considered to be verified whenever the differences of the two marks can not be recognized without comparison or attentive examination. (Law, articles 8 and 2.)
• Art. 10. To obtain registry a petition by the party interested or his special attorney, is necessary, accompanied by three samples of the mark, containing—

  (1) The representation, by means of drawing, engraving, printing, or some analogous process, of what constitutes the mark, with all its accessories, including the color or colors with which it should be used.

  (2) Its explanation or description.

  (3) A declaration of the article of industry or trade for which the mark is intended, the occupation of the petitioner, and his place of residence.

• The petition, as well as the samples of the mark, should be done on substantial paper, 33 centimeters long and 22 wide, with a margin for binding, without creases or seams, and each one stamped, dated, and signed. (Law, article 5.)
• Art. 11. As soon as a petition is presented for registry the secretary of the junta commercial, or, in the inspectorias, the employé designated by the chief, shall certify on each model the day and hour of its presentation, giving the party a receipt when required, and when the petition is drawn he will submit it for decision. (Law, article 6.)
• Art. 12. When the registry is ordered, the secretary or the employé of the commercial inspectoria will certify it on each of the samples of the mark, and will cause one of them to be placed in the archives with the petition, placing on it the order number, which he will note also on the other samples delivered to the party. (Law, article 6.)
• Art. 13. Within thirty days, reckoned from the date of the registry, the party interested shall publish in the official newspaper (article 2) the description of the mark and the respective certificate, copied in full from one of the samples, which with the other from the newspaper he shall deposit in the Junta Commercial of Rio de Janeiro, within sixty days, reckoned from the same date.
• Secondary paragraph.—The party can, if he wishes it, include in the publication the drawing or representation of the mark. (Law, article 7.)
• Art. 14. These documents shall be bound at the end of every year, and to each volume shall be added an index, mentioning in alphabetical order the nature of the products for which the marks are designed, and then consecutively the name of the proprietor, the order number of the archives, and the place of registry.
• Art. 15. Documents relative to registries made in foreign countries shall be bound in another volume, with a suitable index added to it.
• Art. 16. Indexes corresponding to the past year will be published in the Diario Official in the month of the July following. The Junta Commercial of Rio de Janeiro having ascertained the correctness of the publication, which it will cause to be corrected, if necessary, shall communicate it to the Government, for the purposes determined in the international treaties.
• Art. 17. The commercial juntas or inspectorias will permit any one who solicits the privilege to examine in their offices, and under the necessary guard, documents filed or deposited concerning industrial and trade marks.
• Art. 18. If before the completion of the registry of a mark the registry of another one or more, (which are) identical or similar, be requested, the registry of that one will be made which had precedence in the day and hour of presentation. In default of this requisite, the mark of that petitioner will be preferred who, within eight days, proves to the tribunal of the commercial junta or inspectoria that he has used or possessed it for the longest time. In default of this proof, none of the marks will be registered unless the parties interested modify them so as to avoid error or confusion. (Law, article 9, No. 1, combined with article 8, No. 6.)
• Art. 19. In case of doubt arising as to the use or possession of the mark the commercial junta or inspectoria, if it deems it advisable, will order the parties interested to settle the question before the competent tribunal, and the registry will then be made in conformity with the judgment. (Law, article 9, No. 2.)
• Art. 20. Should it happen that identical or similar marks, as set forth in article 9, Nos. 5 and 6, and the separate paragraph, are registered in different juntas or inspectorias, that which is prior in date will take precedence.
• In case of simultaneous registry each of the parties interested can apply to the competent tribunal. That will decide which shall be maintained, having in view the provision in article 18. (Law, article 9, No. 3.)
• Art. 21. The junta or inspectoria to which may be presented a certificate that this action is pending shall at once order the effects of the registry to be suspended until the final decision of the cause, which (order) the party interested shall publish in the official journal. (Law, article 9, No. 4.)

Chapter III.

of appeals.

• Art. 22. From the decision refusing or granting registry of an industrial or trade mark, an appeal can be taken with suspensive effect to the court of appeals of the district, according to regulation No. 143, of March 15, 1842.

  (a) In the first case by the party who has asked for the registry.

  (b) In the case of grant of the registry.

• (1) By the public prosecutor, in the cases of Nos. 1 and 4, last part of article 9.

  (2) By the owner of a commercial name or firm which he who has registered the mark can not lawfully use, in conformity with No. 2 of the cited article 9.

  (3) By any producer of or dealer in similar goods who resides in the place falsely indicated as the place from which the article comes, in conformity with No. 3.

  (4) By the owner of the establishment also falsely indicated as the place of origin of the article, in conformity with said No. 3.

  (5) By the party injured, in the case of No. 4, first part.

  (6) By the party interested in the registered mark, in the cases of Nos. 5 and 6. (Law, article 10, combined with article 17, second part.)

• Secondary paragraph.—Appeal can be made in the case of No. 2 of this article, although the owner of the commercial name or firm has not registered them and though the reproduction be not entire, and though there be additions, omissions, or alterations whenever the possibility of error or confusion is verified. (Law, article 10, combined with article 11, last part, and article 14, No. 7, section 2.)
• Art. 23. The term for taking an appeal will be five days, counting from the publication of the decision; but, if the party does not reside in the place where the publication is made, and if there is not a special prosecutor there, the term will begin to run thirty days after. (Law, article 10, last part.)
• Art. 24. The commercial junta shall confirm the decision within twenty-four hours, counting from the first session after the presentation of the first draft (minute) of the appeal, if the appeal be not allowed.
• The commercial inspectorias shall make their decision within twenty-four hours, reckoned from the presentation of the minute, if they maintain their refusal of the registry.
• Art. 25. In the commercial juntas the employé who has served as register in the case is competent to draw up the appeal for the court of appeals of the district, and, in the inspectorias, whoever may be designated by the chief.
• The presentation of the papers to the tribunal devolves in the inspectorias on the said employé, and in the juntas on the secretary.
• Art. 26. Besides the appeal, the persons mentioned in article 22, and in the cases respectively provided therein, can institute a suit for the nullification of the registry. (Law, article 11.)
• Art. 27. The owner of a commercial name or firm is entitled to sue a competitor in the same kind of industry or trade who has a claim to an identical or similar name or firm, to compel him to modify them so that there can be no error or confusion, on proof of prior possession for industrial or commercial use.
• Secondary paragraph.—This suit is admissible though the plaintiff has not registered the name or firm, and though there has not been a complete reproduction, but one with additions, omissions, or alterations, provided there be possibility of error or confusion (Law, article 11, combined with article 14. No, 7, section 2.)
• Art. 28. The tribunal competent for the suits named in articles 19, 20, 26, and 27, is that of the defendant’s domicil, or of the place in which goods were found bearing the prohibited marks (article 9), or where the usurpation of the name was practiced. (Article 27.) Its form of procedure is that of articles 236 and those following, of Regulation 737 of November 25, 1850. (Law, Article 24.)
• Art. 29. The suits referring to acts provided for in article 9, Nos. 5 and 6, can not be instituted without the production of the certificate of registry and of its publication, save, as to the latter, when dealing with acts which occurred within the term allowed for the insertion of the document in the official paper. (Law, article 22, last part, and article 23, first part.)
• Art. 30. Those suits expire by limitation which are referred to in article 26, and which relate to the acts provided for in article 9, Nos. 2, 3, and 4, first part (individual offense), and in article 27, if not instituted within six months after the registry of the mark. (Law, article 11.)
• Art. 31. The party injured by the appropriation of the mark, of which he made prior use without having it registered, is entitled to demand, by means of a suitable action, indemnity tor the loss which he has suffered. (Law, article 23.)

Chapter IV.

of other guaranties of the registered mark.

• Art. 32. The guaranties of the duly registered mark which has been duly deposited and published are also rendered effective by means of:

  (1) A search or inspection to ascertain the existence of forged or imitated marks, or of merchandise or products that contain them.

  (2) The seizure and destruction of forged or imitated marks in the workshops in which they are prepared, or wherever they may be found, before they are used for a criminal purpose.

  (3) The destruction of forged or imitated marks on the packages or articles bearing them before they are cleared from the custom-house, even though the wrappers and the merchandise or products themselves may be thereby damaged.

  (4) The seizure and deposit of merchandise or products bearing a forged or imitated mark, or one indicating a false origin.

  (5) Penal sanction against culprits.

  (6) Indemnity for loss occasioned. (Law, article 21.)

• Art. 33. The measures (acts) of the preceding article, Nos. 1 to 4, will be ordered by a commercial tribunal or required by it of the chief of public offices or establishments in which are the goods or products subject to such proceedings whenever the party demands them, exhibiting a certificate of the registry of the mark, and observing the following provisions:

  (1) In case of search the formalities of articles 189 to 202 of the Code of Criminal Procedure must be complied with.

  (2) The seizure and deposit only to take place as preliminaries of the suit, or in the course of it, and are of no effect if it be not instituted within thirty days, or if it be suspended by default of the plaintiff for more than fifteen days.

  (3) All duties due to the national treasury having first been paid in the customhouse by the person who petitioned for the proceeding, the articles seized will be placed in the public depository.

  (4) The said articles will serve as a guaranty of the payment of the fine and the indemnity of the mark, for which purpose they will be sold at public auction in the course of the suit, if they easily spoil, or in case of execution. (Law, article 21, sections 1 and 2, and article 22.)

• Art. 34. Before ordering the measures (proceedings) of article 30, the judge, if he thinks proper, can require of the party security tor payment of expenses (costs). The said party can appeal to the court of appeals of the district against the amount of the costs.
• Art. 35. The certificate of registry is not necessary whenever the question is as to marks, goods, or products in the conditions of article 9, Nos. 1 to 4, to all of which are applicable the guaranties of article 32, Nos. 1 to 4. (Law, article 22, last part.)

Chapter V.

of the penal sanction.

• Art. 36. The following persons shall be punished with imprisonment from one to six months, and a fine of 500 to 5,000 milreis for the use of the state:

  (1) Whoever reproduces, wholly or in part, by whatever means, any industrial or trade-mark, duly registered and published, without the authority of the owner or his legal representative.

  (2) Whoever uses a mark belonging to another, or forged, as set forth in No. 1.

  (3) Whoever sells or offers for sale articles bearing a mark wholly or partly forged, or belonging to another.

  (4) Whoever imitates an industrial or trade-mark in such a manner that the buyer can be deceived.

  (5) Whoever uses a mark so imitated.

  (6) Whoever sells or offers for sale articles bearing an imitated mark.

  (7) Whoever uses a commercial name or firm which does not belong to him, whether it forms part of a registered mark or not.

  § 1. To constitute the imitation referred to in Nos. 4 to 6 of this article, it is not necessary that the resemblance to the mark should be complete. It is sufficient, whatever the differences, that there should be a possibility of mistake or confusion, as set forth in article 9, No. 6, last part.

  § 2. The usurpation of the commercial name or firm, referred to in No. 7, shall be considered as existing, whether the reproduction be entire or whether there be additions, omissions or alterations, provided that there be the same possibility of mistake or confusion on the part of the buyer. (Law, article 14, sections 1 and 2.)

• Art. 37. The following persons shall be punished with a fine of 100 to 500 milreis for the use of the State:

  (1) Whoever, without due authority, uses as an industrial or trade-mark arms, armorial bearings, or public or official insignia, domestic or foreign.

  (2) Whoever uses a mark that offends public decorum.

  (3) Whoever uses an industrial or trade mark that contains an indication of a locality or establishment which is not that of the place of origin of the merchandise or product.

  (4) Whoever sells or offers for sale merchandise or products bearing marks such as are set forth in Nos. 1 and 2 of this article.

  (5) Whoever sells or offers for sale merchandise or products as set forth in No. 3. (Law, article 15.)

• Art. 38. Whoever uses a mark containing personal offense, or who sells or offers for sale articles bearing such a mark, shall be visited with the penalties of article 237, section 3, of the criminal code.
• Art. 39. The repetition of the offense shall be punished with double the penalties fixed in articles 36, 37, and 38, if ten years have not elapsed since the previous condemnation for any of the offenses named in said articles. (Law, article 18.)
• Art. 40. The penalties named do not exempt the delinquents from payment of the loss caused by them, and which the parties injured can demand by proper suit. (Law, article 19.)
• Art. 41. The sentences passed on the offenses named in this law shall be published in full by the successful party in the same journal in which the registries were published; otherwise they shall not be executed. (Law, article 20.)
• Art. 42. The criminal action against the offenses mentioned in articles 36 and 38 shall be solicited by the party interested or injured; that of article 37, Nos. 1, 2, and 4 by the public prosecutor of the district where were found the articles bearing the marks therein named; and that of Nos. 3 and 5 of said article 37 by any producer of or dealer in an identical or similar product, who resides in the place of its origin, or by the owner of the falsely indicated establishment. (Law, article 17.)
• Art. 43. The tribunal for these actions is that of the domicile of the defendant or of the place in which were found the goods or products distinguished by the mark subject to the penalty established in the preceding articles.
• The indictment and judgment shall be regulated by law No. 562, of July, 1850, and decree No. 707, of October 9 of the same year. (Law, article 24.)

Chapter VI.

general provisions.

• Art. 44. The fees now collected in the commercial juntas and inspectorias of the Empire will continue to be levied and applied in the same way, except, in Rio de Janeiro, those for the title of books, which are raised to 50 reis.
• Art. 45. There is also raised to 6 milreis the seal established for the registry of industrial and trade marks in No. 20, section 5, of list B, annexed to decree No. 8946 of May 19, 1883.
• Art. 46. Contrary provisions are revoked.

Rodrigo A. da Silva.

Palace of Rio de Janeiro,
December 31, 1887.