CMS Expert Guide on Preliminary Injunctions in IP in Brazil

Any IP actions which involve the risk of irreparable harm or harm that is difficult to remedy.

No.

However, case-law often values formal notifications as evidence of good faith (demonstrating that the party attempted to resolve the dispute amicably before litigating) and, although not mandatory, such notifications may reinforce the urgency element required for the PI.

No.

However, the request should be made promptly to strengthen the urgency element (which satisfies the requirement of urgent relief).

PIs can be granted swiftly in cases of clear urgency and where there is a plausible claim, supported by robust pre-constituted evidence. The time frame varies depending on the complexity of the case and the court it is brought before. 

Yes. However, this may only occur in certain situations. For example, when the court schedules a justification hearing, when evidence needs to be collected, if the parties reach an agreement or if an injunction is granted.

Robust material evidence must be provided before courts to sufficiently demonstrate the probability of the right (fumus boni iuris) and the risk of harm (periculum in mora) to the right holder.

Yes. The judge may grant a PI on an ex parte basis, provided the legal requirements are met (probability of the right, risk of harm, and reversibility of the measure).

This is common in counterfeiting, trademark infringement, or piracy cases, where there is a risk of evidence dissipation or aggravation of damages.

Yes, procedural costs may be recoverable at the conclusion of the proceedings, provided that a final judgment on the merits is rendered in favour of the claimant. Nonetheless, such recovery is contingent upon the prevailing party’s success on the merits and the defendant’s financial capacity, given that a PI is, by nature, a provisional remedy.

The judge may, at their discretion, require a security deposit (real or surety bond) to compensate the opposing party for potential damages.

In IP disputes, judges often waive the requirement when the claimant holds a duly registered IP right, except in cases where there is a high risk of damages to the defendant.

Yes. An interlocutory appeal is available against decisions granting or denying a PI. Filing such an appeal does not automatically suspend the effects of the PI unless the reporting judge grants suspensive effect upon request. Provisional measures may therefore be enforced immediately.

On average, interlocutory appeals take between 60 and 150 days, depending on the court and the urgency recognised. Specialised courts generally rule more swiftly.

Generally, a decision granting provisional relief is immediately effective, particularly if issued on an ex parte basis. Effectiveness depends only on valid notice to the opposing party. 

In exceptional cases, the judge may order immediate enforcement prior to service of process to prevent irreparable harm.

If the defendant fails to comply with the PI, the judge may order:

• Daily fines (astreintes);
• Search and seizure measures;
• Asset or bank account freezing;
• Criminal sanctions for contempt of court ; and
• Other coercive or mandatory measures (e.g., content removal, activity suspension).

Yes. If the PI is later revoked or deemed unwarranted, the affected party may claim damages under the strict liability regime for procedural wrongful acts.

If a PI is granted on a prior standalone basis, the claimant must file the main action within 30 days.
If granted incidentally, the injunction is issued within an already pending action, in which case the merits will be decided in the final judgment of the same proceedings.