Dannemann Siemsen is pleased to inform its clients and partners that, on December 3, 2025, the Brazilian Federal Revenue Service (RFB) issued Interpretative Declaratory Act (ADI) RFB No. 3, which provides unified guidance on the application of Articles 605 to 608 and Article 689 of the Brazilian Customs Regulation (Decree No. 6,759/2009). This measure represents a significant step toward consolidating technical and procedural criteria applicable to the administrative retention of goods suspected of counterfeiting or false indications of origin, enhancing legal certainty and enforcement efficiency in Brazil.

The ADI clarifies that customs authorities are fully empowered to retain, on their own initiative, goods suspected of infringing intellectual property rights or bearing misleading indications of origin, without the need for an immediate court order, provided that the procedures set forth in the Customs Regulation are duly observed. It further confirms that preliminary evidence, technical reports and other materials submitted by the rights holder pursuant to Article 606 are sufficient to support the continuation of the retention and to guide the subsequent administrative proceedings.

The act also reaffirms that, once an infringement is confirmed, forfeiture must be imposed, including in secondary customs zones, in accordance with Article 689 of the Customs Regulation. The RFB emphasizes that such measures are fully consistent with Brazil’s international obligations, including the TRIPS Agreement, as they are grounded in public interest considerations such as consumer protection, fair competition, economic order and national security.

In light of this consolidated interpretation, the importance of preventive and well-structured customs protection strategies becomes even more evident. The practical effectiveness of the powers reaffirmed by ADI RFB No. 3/2025 largely depends on the prior availability of organized and reliable technical information provided by rights holders to customs authorities. In this context, key instruments include: (i) the filing of an Inspection Request with DIREP, COREP and COANA, within the scope of the Brazilian Federal Revenue Service’s Customs Administration; (ii) registration with the National Directory for Combating Counterfeiting (NDFC), managed by the National Council for Combating Piracy (CNCP) in cooperation with the Brazilian Patent and Trademark Office (INPI); and (iii) registration with the Customs Anti-Piracy System (SCP), an internal database used by customs auditors at border points.

Inspection Requests filed with DIREP, COREP and COANA enable enhanced monitoring of shipments at major ports and airports and allow for the systematic retention of suspected counterfeit goods based on information previously provided by the rights holder, such as trademark registration certificates, detailed descriptions of genuine products, distinguishing features of counterfeits and lists of authorized importers. Likewise, registration with the NDFC and the SCP ensures direct and immediate communication channels between rights holders and enforcement authorities, facilitating the swift identification of suspicious goods and the effective application of the administrative powers reaffirmed by ADI RFB No. 3/2025.

The practical impact of this guidance is substantial. For rights holders, the ADI reduces operational uncertainties by standardizing and unifying the procedure for all Ports, Airports, Dry Ports, and Federal Revenue Service Units. Also it increases predictability, reduces reliance on emergency judicial measures and underscores the importance of proactive, technically robust engagement with customs authorities. For the market as a whole, it enhances consistency across customs units, strengthens enforcement reliability and contributes to a more balanced competitive environment, ultimately reinforcing consumer protection and the fight against counterfeiting and piracy.