DD of technology M&A transactions in the Federative Republic of Brazil is carried out to confirm a target company's entitlement to its core technology assets. Legal analysis of IPR ownership requires submitting registration certificates to the INPI (an agency charged with overseeing M&A deals in the Republic of Brazil) for analysis. The use of 3rd party IPR or OSS should also be verified & assessed.
Acquiring a Brazilian company’s assets requires submitting a decision on transferring IP to the INPI. Transferring a TM in the Republic of Brazil requires compliance with specific rules that may impose restrictions on purchasing a particular asset.
INPI-maintained public databases provide one with an opportunity to search for registration applications & industrial property certificates. Court records as to whether or not this or that asset is the subject of any ongoing legal dispute are also available. Although domain names aren’t deemed assets as per Brazilian legislation, DD of technology M&A deals in Brazil usually involves verifying registration of a domain name with Registro.br (an agency responsible for registering domain names in the Republic of Brazil).
Brazil: Registration of IPR
IP is classified into two groups:
- registration of copyright in the Republic of Brazil (optional);
- registration of industrial property in the Federative Republic of Brazil (mandatory).
Copyright covers works of art, books & scientific works in which authors are protected. Industrial property rights, in their turn, cover assets related to corporate activities (i.e. industrial designs, TMs, geographical name, patents & integrated circuit topography).
Normally, obtaining copyright protection in Brazil involves:
- assessing the process of creating & modifying IP;
- analyzing labor contracts with IP developers for provisions guaranteeing ownership of assets;
- assessing current legal disputes;
- analyzing license agreements.
When it comes to industrial property, the following actions are usually undertaken:
- searching INPI databases for information on asset ownership;
- analyzing current legal disputes;
- analyzing licensing agreements for IPR in Brazil.
When it comes to registering security interests or IP security interests in Brazil, the general rule is that security agreements must be entered in the register of documents & the INPI.
Those seeking to initiate a technology M&A deal in the Republic of Brazil are highly recommended to verify agreements concluded between a target company & its employees/contractors. Failure to provide adequate contractual protection of IP assets may result in litigation & claims for misuse of 3rd parties’ IPR.
Brazil: Transferring Licensed IP
Transfering IPR in Brazil requires registration with the INPI.
Brazil: DD of Software
DD of software usually covers:
- analyzing agreements with developers;
- using OSS & related licenses;
- analyzing license agreements;
- assessing risks of losing legal disputes.
Considering buying a Brazilian company? Need advice on M&A regulation in Brazil? Why not contact IQ Decision UK?