While most countries are increasing their intangible rights for their products, Brazil is still struggling in many aspects. It is not because there is no legislation about this specific matter; but rather, foreigners are more prone to being interested in Brazilian products than Brazilians.

Although it seems like a lack of interest itself, this is not the reality. Many studies have been made to increase the protection of intellectual property, and both students and professionals are developing excellent work alerting the government how it could be better. However, Brazil is still fighting against poverty and bad investments made by their governments, which increases the journey to reach real fairness, especially for those rights considered as a luxury.

According to a recent study, small companies account for 27% of Brazil’s GDP and they are responsible for 60% of the 94 million employment positions in the market. A majority of these small companies do not trademark or patent their inventions.

The last World Intellectual Property Organization – WIPO report stated that Brazil is the penultimate in terms of patenting its products and the difference between Brazil and the last country in the ranking is merely 212 items. Comparing to its counterparts, on BRICS, Brazil is the last one. The lack of IP protection is happening on a minimal scale, in many of Brazil’s small and medium business, and with products that belong to Brazilian culture, which also requires a specific legal protection.

This entire preamble is to say that certain companies from Germany and Japan have already discovered this gap and are trying to catch Brazil’s most typical receipts and even some of its fruits. These companies are trying to patent these products (such as Açai, Rapadura, Cupuaçu, Acerola, Stevia, Andiroba, Bibiri, Copaíba, Cunani, Espinheira-santa) and this situation reveals one of the big dilemmas in IP: How to avoid the unfairness when developing countries have their products patented by another country?

Here are two cases that demonstrate the situation.

Japan Almost Purple

Açai is famously known to be a great source of energy. It started being eaten by those who practice sports on Brazilian beaches and soon after gained territory in gyms. It is known to be an anticancer and antioxidant (it is even richer than cranberries and raspberry).

In 2003, a Japanese company called K.K. Eyela Corporation registered the Açai berry. However, this berry is typically cultivated in Brazil and it was almost unknown to the Japanese market at that time.

The story itself seems problematic and it caused many rumors that KK Eyela Corporation would have practiced bio piracy, but at times, the gossip seemingly contained some truthfulness. It has been said that a group of Japanese came to Brazil and “stole” some seeds. Allegedly, the company was also interested in other types of Brazil’s typical fruits, such as Cupuaçu (the correct pronunciation is koo-poo-ah-soo).

The Brazilian Embassy initiated a battle to overturn the trademark. After four years, the Department of Genetic Patrimony of Environment Ministry informed that Japan Patent Office canceled the patent.

Because of this case, the Brazilian government created a list including all of its products, aiming to prevent the bio piracy. On that list, there are three thousand scientific names of plants and berries and more than five thousand popular names. This list was spread to patent offices around the world, but it still has not banned all of the piracy.

In 2011, the Legislative Power created a Law proclaiming Açai berry a national fruit(Law Project 2787/2011). This change protected Açai berry against future attempts to patent by non-Brazilian companies and it also avoids deception regarding its origin. In November 2014, the new rule was accepted and will be published.

Germany Isn’t So Sweet

In Brazil, there is popular wisdom that says: Rapadura is sweet, but it is not soft. People usually say that when you find something really good, you have to struggle in order to deserve it. This is what is happening with Brazil and their saga to bring back the product to Brazilian’s hands.

One small company named Rapunzel, in Germany, acquired the Rapadura’s patent in 1989. After seven years, they did the same, but in Washington – USA, which meant that if a Brazilian tried to sell a product with this specific name to Germany or the United States, they would have to pay royalties to the German company.

The Brazilian federal government found out about the patent through an anonymous letter, which was discovered to be authored by a researcher that was surfing the Internet. After sending two official letters to the German Patent Office, informing them about the Rapadura and its origins, the German company’s response was that they did not know that Rapadura was a typical recipe from the North of Brazil, even though they bought all the sugar (the principal ingredient for Rapadura) from Brazil.

The Brazilian Bar Association, named OAB (Ordem dos Advogados do Brasil), brought an action against the German company, arguing that the company was in breach of the TRIPS agreement. The case, nonetheless, remains without a resolution.

The name Rapadura, as well as Açai, and other typical products, did not belong to one Brazilian company, but to the whole nation. The process of requiring a registration is quite different from creating a patent for a product, or a trademark. Therefore, the question involves the government and laws, and not only private interests.

If Brazil was in the last place on trademarks and patents for business, the national products would be another point that should stimulate Brazil to run – and run really fast – in order to protect Brazilian natural wealth. Perhaps the possible response for the question in the beginning of this post is to create better solutions and strengthen policies against this type of problem that violates the culture of a whole country.

Photo courtesy: Feira Acai 2013-0122 by Paulo Neves