Founded in 1995 by experienced attorneys with well-established reputations, Barbosa, Müssnich & Aragão is today one of Brazil's leading law firms. As a business law firm serving both Brazilian and international clients, Barbosa, Müssnich & Aragão's primary focus is to offer comprehensive support in all legal aspects of business transactions. The firm's practice extends to the most diverse aspects of business law, dealing with the repercussions of business transactions in the areas of corporate, tax, finance, administrative, litigation, labor law and intellectual property.
Since its inception, Barbosa, Müssnich & Aragão has consolidated an extensive knowledge of the Brazilian legal and economic scene, acting in a significant number of the major transactions in Brazil. Barbosa, Müssnich & Aragão is an active participant in transactions, helping clients to find creative solutions to the fundamental issues of their businesses.
Innovation and a focus on excellence are the foundation of Barbosa, Müssnich & Aragão's reputation for developing legal structures and strategies that make a real contribution to clients' business strategies and objectives.
Through its comprehensive law practice, Müssnich & Aragão provides support in all legal aspects of business transactions, finding creative solutions to achieve clients' objectives. Our main practice areas are:
Administrative Law and Concessions
Barbosa, Müssnich & Aragão Advogados has advised in privatization transactions and concessions of public services in the most diverse economic sectors, such as telecommunications, electricity, natural gas distribution, sewage systems and public transport. During Brazil's intense period of privatizations and public concessions, BM&A developed expertise in regulatory law, representing clients before federal and state regulators and other governmental agencies.
BM&A also assists clients in government contracting processes and related procedures, and advises in public-private partnerships.
Competition and International Trade
Barbosa, Müssnich & Aragão offers legal support in competition law, economic regulation and trade protection matters. Its practice extends to legal advice and representation in administrative proceedings, involving approval of Acts of Concentration in connection with mergers, acquisitions, joint ventures and associations, investigations into anti-competitive conduct, especially cartels, transfer of regulatory authorizations, and compensating measures, antidumping and subsidies. BM&A's competition specialists also assist in preparing and implementing compliance programs and in competition advocacy with antitrust authorities.
Barbosa, Müssnich & Aragão Advogados' cornerstone is the corporate law area. Over the years, it has participated in structuring dozens of landmark transactions in the Brazilian market. With particular emphasis on public companies, BM&A acts in mergers and acquisitions, sales of control (negotiated and hostile) and minority stakes and assists business owners in structuring new companies with investors and operating partners.
BM&A also provides services in matters under the jurisdiction of the Central Bank of Brazil (BACEN) and the Brazilian Securities Commission (CVM), including advice on regulatory issues and representation of clients in administrative proceedings. Specialized attorneys advise clients on compliance with regulations issued by the National Monetary Council (CMN), CVM and BACEN, and provide opinions on the application and interpretation of the legislation and regulations applicable to Brazil's capital market.
Corporate Ethics & Compliance
Barbosa, Müssnich & Aragão has a leading corporate ethics practice in Brazil, combining an extensive knowledge both of the corporate and government environments. Our team is composed of former Brazilian federal attorneys and corporate lawyers with significant experience with domestic and foreign laws, such as the U.S. Foreign Corrupt Practices Act - FCPA, working together with the various practices of the firm. The services include designing and implementing anti-bribery and anti-money laundering compliance programs, due diligences and internal investigations, white collar defence, crisis management and international legal cooperation.
Employment, Labor and Pension Law
Barbosa, Müssnich & Aragão Advogados' approach to employment and labor issues goes beyond the traditional labor law practice. Specialized professionals provide advice on employment and pension matters in connection with mergers, acquisitions, privatizations and other corporate restructuring transactions. BM&A is also active in labor and employment risk management, assisting clients to identify critical issues and design human resources policies. The firm also represents clients in employment and pension litigation.
Barbosa, Müssnich & Aragão's environmental law specialists provide complete services to businesses. With its business focus, this practice is directed to finding practical solutions to environmental issues and creating secure interactions with environmental agencies, assisting clients to avoid and overcome obstacles to their business objectives, from the planning and legal due diligence stage to management of environmental liabilities at the administrative and judicial levels.
Finance and Capital Markets
Barbosa, Müssnich & Aragão Advogados dedicates special attention to the constant advances in the Brazilian finance and capital markets and related legislation and regulation. The Firm advises clients in credit transactions in general, both domestic and international, as well as in debt restructuring, securitization and project finance. We advise Brazilian and foreign investors in currency exchange transactions and investments in the capital and financial markets, including transactions involving derivatives, swap contracts, options and futures and other transactions on the stock exchange, commodities exchange and over-the-counter market.
BM&A also assists clients in public and private offerings of securities in the domestic capital market (shares, debentures, ADRs, BDRs, commercial paper, bonds and notes), going public and going private transactions, and takeover offers, among other transactions. The Firm's finance and capital markets practice also extends to the structuring of investment funds in general, such as private equity funds (FIPs), receivables investment funds (FIDCs) and real estate investment funds (FIIs).
BM&A offers full-service IP practice, including all aspects of IP prosecution and advisory services in the fields of patent, industrial design, trademark, plant varieties, copyright, and trade secret law, including counseling in licensing, unfair competition, anti-counterfeiting and litigation. BM&A assists clients in managing their international and national IP portfolio and advises in all types of IP agreements as well as on some of the most complex IP issues in a wide range of transactional matters, including M&As, IPOs, joint ventures and corporate restructurings, participating in due diligence procedures and drafting strategies aiming at maximizing both protection and value of client's IP assets.
Advertising and Publicity
BM&A PI provides a range of services in matters affecting the marketing of goods and services via advertising and publicity. Drawing on our expertise in IP law and unfair competition, as well as consumer protection, we advise client issues relating to advertising content, contracts, production and disputes in all media from print to audiovisual to digital.
For example, we help clients:
· Analyzing and advising on advertising
· Obtaining protection and/or licenses for intellectual properties used in advertising
· Scrutinizing advertising uses in the marketplace and issuing cease and desist letters when appropriate
· Negotiating and drafting contracts or resolving contractual disputes involving IP
· Handling complaints to CONAR (the advertising industry self-regulation council), which in many cases is the best forum to resolve disputes quickly and efficiently, to avoid potentially lengthy and costly lawsuits
Contracts, Licensing & Technology Transfer
BM&A PI assists our clients in negotiating, drafting and revising all types of contracts involving intellectual property, such as agreements for transfer of technology, know-how and technical assistance, license agreements, assignment of rights and service provision agreements, including procedures to record these contracts with the Brazilian PTO (Instituto Nacional da Propriedade Industrial - INPI) and other government offices.
We also lend our technical expertise in broader business transactions, analyzing and advising on the intellectual property aspects of mergers, acquisitions, liquidations, split-offs, buyouts, cost sharing, franchise and distribution arrangements, among others.
Examples of our services are:
· Transfer of biological material;
· Transfers of technology;
· Licensing of trademarks, patents, copyrights (e.g., "look and feel" features such as architectural, decorative design) and know-how in franchises;
· Assignments of patents, trademarks and copyrights;
· Recordation's of licenses, transfers and agreements in the Brazilian PTO, Central Bank, as required;
· Assignments of patents, trademarks and copyrights;
· Recordation's of licenses, transfers and agreements in the Brazilian PTO, Central Bank, as required;
Given the diversity of our clients, BM&A PI's professional have many opportunities to deal with copyright properties, including rights of authors and artists in traditional; fields such as literature, music, dramatic and choreographic works, art in all forms, motion pictures video and sound recordings, as well as scientific expressions, software and other creations of new media. Among other areas, we evaluate and draft contracts and obtain registrations, authorizations and assignments necessary for secure use of works, guaranteeing our clients adequate protection in each situation.
Our practice includes:
· Consulting, preparing opinions, negotiating agreements and litigating in cases of infringements or validity of copyright or related rights;
· Portfolio management;
· Registration of rights;
· Designing and implementing anti-piracy programs.
Similar to trademarks as a form of public identification but subject to their own requirements for protection, domain names are an integral part of intellectual property. BM&A PI assists our clients in structuring and implementing a plan to manage and maintain their domain names and Internet assets.
Representative of our services are:
· Developing strategies for domain name protection, considering national and global objectives;
· Registration of domain names;
· Watching for Internet infringements;
· Resolving domain name disputes before the Arbitration and Mediation Center of the World Intellectual Property Organization (WIPO) or in the courts.
In many transactions, and particularly in mergers and acquisitions, it is necessary to assess the intellectual property assets to determine whether the value of the deal is supported by the value of the underlying property and, even more basically, whether the assets are owned by the party who claims to own them. Sometimes, IP due to diligence is conducted without a transaction, as part of a general corporate valuation.
An IP due diligence investigation is essentially an inventory of the intellectual property assets but the nature and scope of the process must be tailored to meet the business situation. Depending on the circumstances, BM&A PI's experience and expertise allow us to conduct critical analysis that includes:
· Identification of the goods and service;
· Identification of the corresponding intellectual property;
· Evaluation of the strength of the IP rights in the marketplace;
· Consideration of the strength of competitor's rights;
· Assessment of the effect of the IP on the company's products and other IP rights;
· Establishing a value for the IP rights based on current conditions and potential for commercialization or exploitation of the rights.
BM&A PI is experienced in representing clients in the entertainment industry and the various media in which they deliver products and services. We counsel and advise on the protection and enforcement of all related intellectual property, as well as the right to use. Copyrights, trademarks, patent, know-how, trade secrets and confidential information, as well as advertising and publicity, e-commerce and Internet are frequently involved. We also understand the implications of international agreements and treaties on these intellectual properties.
Examples of the issues we handle in this industry are:
· Negotiation and drafting of production agreements;
· Preparation of license agreements for images;
· Review of licensing and sponsorship contracts;
· Enforcing contractual and intellectual property rights, including anti-counterfeiting and anti-piracy programs.
Franchising & Distribution
With globalization, Brazil has increasingly become an exporter of marks, technologies and services that require intellectual property protection throughout the distribution chain. Brazil also has been attracting greater interest from foreign companies for its large market, including international franchisors. Working with our law firm partners at Barbosa, Müssnich & Aragão Advogados (BM&A Advogados), we are able to address all the corporate, commercial, competition, franchise and tax law issues, and to bring our particular expertise to the intellectual property issues of trademark, patents, copyrights, trade secrets and advertising.
Our practice includes:
· Evaluation and recommendations of the best legal structure for setting up franchise and/or distribution networks, through negotiation, drafting of all documentation necessary to create and secure such arrangements;
· Protection of patents and trade secrets, including licensing of know-how;
· Protection of trademarks, including licensing of marks, quality controls relating to the goodwill of the marks, advertising and shared-costs;
· Franchisor and franchisee dispute resolution.
Unlike a patent, which protects the result of a technical creation or the functionality of a product and is highly technical procedure, an industrial design registration protects the form or an ornamental characteristic of a product and can be obtained quickly. This protection is particularly useful for those products that are marketed for short periods.
BM&A PI is knowledgeable and experienced in assessing the protection afforded by an industrial design registration compared to other forms of IP and assists clients in advantageously engaging this type of property ownership.
Our services include:
· Strategic and practical advice on protectibility
· Searching and clearance of industrial designs
· Registration, maintenance and assignment of rights
· International protection
· Enforcement of rights
We excel at creating intellectual property policies for companies that help them obtain the greatest value from their intangible assets.
Calling on our multidisciplinary team, BM&A PI assists our clients in managing their intellectual property rights in Brazil and abroad by developing strategies for product launches and protection, as well as assisting them with related administrative procedures and in negotiating and enforcing these rights. We help clients increase the benefits from their IP portfolios in a number of ways:
· Enhancing the value of technology by formulating strategies to develop products and processes whose intellectual property rights have solid protection to prevent their violation;
· Maximizing the value of intellectual property by aligning clients' portfolios with their business objectives;
· Evaluating the risks associated with the freedom to operate and protected technologies, patents and marks, including in the chain of title, due diligence examinations, litigation, licenses, negotiations, acquisitions and financing.
IP Transactions & Strategic Counseling
We work in close collaboration with our clients to provide guidance and advice with respect to all aspects of their IP. We consider their short and long term objectives for the IP and develop strategies to help insure the greatest value while managing cost/benefit. We also prepare and implement programs to pragmatically execute these intellectual property strategies, such as strategic portfolio management plans, commercialization opportunities by technology transfers, licenses, acquisitions or sales, brand protection strategies and anti-counterfeiting programs that include publicity campaigns in addition to enforcement.
In a world of constant technological innovation, it has become essential to proactively manage and protect technology efficiently and effectively. The high level expertise and the degree of specialization of BM&A PI's scientific capabilities distinguish our practice and enhance our ability to assist clients in addressing their technology protection needs. Among our areas of technical expertise are chemical, biotechnology and electrical engineering.
· Prior art searches and opinions on the validity of patents, counterfeiting, freedom to operate and patentability of inventions
· Preparation, filing and follow-up of patent applications, with extensive experience in writing claims that conform to the standards of the Brazilian Patent and Trademark Office (Instituto Nacional da Propriedade Industrial - INPI) and ANVISA (Brazilian regulatory agency, equivalent to the FDA)
· Structuring of technology for transfer and patent licensing with understanding of the taxing implications
· Management of portfolios in Brazil and abroad
· Litigation of patent validity, infringement and contractual agreements.
With the expansion of agribusiness and growing importance of biotechnology, the protection of new plant varieties has become an important and valuable part of intellectual property.
The specialists of BM&A PI combine patent and plant variety protection as a fundamental mechanism to maximize the exclusive rights of clients in the biotechnology area, especially those working on the genetic improvement of plants.
BM&A PI assists clients by:
· Providing research on the state of the art;
· Preparing opinions on patentability and validity;
· Advising on strategies for protection and commercialization of rights;
· Drafting and prosecuting applications for protection;
· Negotiating and preparing contracts for the transfer of technology;
· Enforcing rights.
Trade Secrets & Confidential Information
In many cases, the technology developed by our clients is not protected by patents but is very valuable to them and their market. Our BM&A PI experts are prepared to draft confidentiality agreements as well as develop or assess policies to protect the trade secrets of companies where the intellectual property is a key asset.
Among the services we provide are:
· Conduct trade secrets and confidential information audits;
· Draft confidentiality agreements;
· Develop corporate policies and procedures to maintain the exclusive nature of protected information;
· Prepare employment contracts in collaboration with Barbosa, Müssnich & Aragão Advogados (BM&A Advogados);
· Enforce agreements by litigation or alternative dispute resolution in collaboration with BM&A Advogados.
Brazilian law recognizes the concept of unfair competition within the general parameters of intellectual property protection since unfair conduct can result in the infringement of IP rights. For example, unfair competition by copying product packaging may mislead consumers.
BM&A PI provides specialized counseling and strategic advice on matters related to intellectual property involving unfair competition. When necessary, we are fully prepared to take action in the courts.
Our practice includes matters related to:
· Misleading or false advertising;
· Product or trade dress infringement;
· Trade secret infringement.
Alternative Dispute Resolution
Given the long delays in the courts, BM&A PI seeks timely and efficient outcome for our clients in their disputes. Our ability to resolve cases and obtain successful results long before a trial means that we can meet our client's business goals in the most effective manner possible.
Anti-counterfeiting & Anti-piracy
Our BM&A PI team pragmatically approaches counterfeiting problems by creating cohesive programs to combat counterfeiting and other forms of piracy. We tailor each program to address each client's needs but there are generally four main aspects:
1 - Location of the problem;
2 - Definition of the best strategy and countermeasures;
3 - Education of judges and administrative authorities in specific matters;
4 - Public and media relations activities to build awareness and understanding of the crime.
After obtaining sufficient and suitable information on the offending party and the counterfeiting activity, which in some cases is obtained by working together with specialized investigating firms, we develop the best policy and plan. There are a number of measures that can be taken, ranging from a simple cease and desist letter to complex civil or criminal actions, including applying for search and seizure warrants or customs impoundment orders. In a majority of cases, the best strategy involves a combination of measures.
In Brazil (as in other countries), selling counterfeit goods is often seen as a victimless crime, where consumers acquire products similar to the originals at a low price. In fact, the impact of this crime affects not only the holder of the rights, it also hurts consumers, who obtain substandard goods with no protection against defects, and the entire country's economy, through lost jobs and tax revenue.
For this reason, we believe that anti-counterfeiting programs should include publicity actions and institutional relations, normally organized together with the client's local representative. To respond to questions from the press, build goodwill and improve public understanding, BM&A PI advises and assists clients in organizing press conferences, writing press releases, preparing articles and op-ed pieces in newspapers and magazines and preparing announcements to be made through the media.
We know that the bottom-line objectives of an anti-counterfeiting program are to increase sales of legitimate products and preserve the value and integrity of the intellectual property in question. Therefore, we always focus on both.
Border Control Measures & Customs
Complementary to our anti-counterfeiting and anti-piracy work, we actively engage the Customs authorities to combat the importation of illegitimate products through confiscation and seizures. BM&A PI manages and files reports with the Customs offices to help inform them about suspected counterfeits. In addition, we have developed and present training programs for our clients to help Customs officials identify counterfeit goods.
Among the services we provide are:
· Monitoring of the Customs offices in Brazil that are responsible for the ports of entry for counterfeit goods
· Identifying potentially infringing and counterfeit goods, directing investigations made by specialized firms, collecting necessary evidence, coordinating instructions for authentication by our clients, as the lawful IP rights owner
· Initiating actions with the authorities and organizing enforcement efforts
· Ensuring the seizure and disposition of counterfeit goods by the authorities
· Presenting training programs for Customs officials
To assist client in all types of legal actions involving intellectual property rights, our litigation capabilities draw on the resources of BM&A PI and Barbosa, Müssnich & Aragão Advogados (BM&A Advogados) to produce the best outcome possible. Taking a multifaceted and strategic approach to each case, we bring together a multidisciplinary joint litigation team that combines our deep knowledge of the technology or science and the law with a thorough understanding of our client's business. We represent clients before all court levels - administrative, civil, criminal and appellate - and in all aspects of patent, trademark and copyright disputes including:
· IP Ownership and Registration (including Oppositions, Cancellations, Nullity and Validity)
· Unfair Competition
· Fair Competition or Anti-trust
· False or Misleading Advertising
· Deceptive Practices
Of great importance in all conflicts and litigation matters, we make communications with clients a priority so that they are always well informed about all developments, including strategies, opportunities and risks.
Litigation and Conflict Resolution
Barbosa, Müssnich & Aragão provides assistance in both litigation and prelitigation scenarios. Composed of professionals specialized in conflicts prevention and resolution, with broad experience in judicial, extrajudicial and administrative proceedings for the resolution of corporate and civil disputes, BM&A's litigation group also acts in negotiations, mediations and arbitrations in Brazil and abroad. Outside Brazil, the Firm works in partnership with foreign law firms to provide services in other jurisdictions to its clients. In Brazil, Barbosa, Müssnich & Aragão's litigation practice extends to both the state and the federal courts, with emphasis on tax and corporate matters and cases before Brazil's supreme courts.
In response to the growth of the real estate market, Barbosa, Müssnich & Aragão Advogados assists in laying the logistical foundations for real estate enterprises, contributing to improved structures and organization, with specific experience in sophisticated investment vehicles such as real estate funds, mortgage companies, real estate financial systems and income funds. BM&A's services include assistance in purchase, sale, construction and financing agreements and legal structuring of residential, industrial and commercial developments, such as shopping centers, thematic parks, business centers and hotels.
Recovery of Distressed Businesses
Barbosa, Müssnich & Aragão has a specific practice area dedicated to bankruptcies and judicial and extra-judicial recovery of businesses, with attorneys who have extensive experience in civil litigation. BM&A currently advises debtors, creditors, controlling shareholders and investors in the recovery of distressed businesses.
Barbosa, Müssnich & Aragão's research practice area is formed of attorneys and trainees whose interest lies in legal studies and research. Uniting advanced academic qualifications to the practice of law, BM&A's research attorneys work in conjunction with lawyers from other practice areas on complex legal issues arising out of transactions and cases, prepare legal opinions and reports and play a leading role in the management of knowledge within the firm, creating and updating databases of precedents and legal commentary. The activities of the research area add quality, sophistication and creativity to the final result produced by Barbosa, Müssnich & Aragão's professionals.
Barbosa, Müssnich & Aragão advises on tax matters and represents clients in tax litigation. To maximize tax savings in both specific transactions and clients' routine activities, BM&A's tax attorneys are involved in acquisitions and sales, corporate restructurings and investments, as well as acting for clients in administrative and judicial tax proceedings and constitutional challenges to tax legislation and regulations.
Administrative Tax Proceedings
- Preparation and submission of consultations to Brazilian tax authorities;
- Advice and assistance in tax audits, preparation of tax documents and liaison with tax authorities;
- Defense of administrative tax proceedings;
- Representation of clients before municipal, state and federal tax authorities and administrative review boards.
Competitive Government Contracting
- Tax incentive studies to assist in pricing bids in competitive government contracting processes;
- Support in all phases of applications for tax incentives;
- Advice and support in tax issues related to competitive bids in general.
Corporate Restructuring and M&A
- Tax due diligence in merger and acquisition transactions;
- Tax structuring of corporate of corporate reorganizations (joint ventures, acquisitions and sales of equity interests, mergers and spin-offs) and transactions subject to indirect taxes, in order to achieve the smallest tax burden.
- Advice and assistance for individual and corporate investors on the interpretation and application of Brazilian tax legislation (federal, state and municipal);
- Advice and assistance for non-resident investors on Brazil capital gains and income tax
- Interpretation and application of Brazilian double taxation treaties.
- Tax advice on import and export transactions, including customs tariffs and classifications;
- Reduction of tax burden through the ex-tariff system;
- Advice and support in applications for special customs regimes, including temporary admission, REPETRO, commercial leases and drawbacks.
General Tax Consulting
- Consulting arrangements with business classics for on-going advice and support on direct and indirect taxes and social contributions;
- Preparation of legal opinions on federal, state and municipal taxes;
- Preparation of procedural tax manuals for compliance with tax accounting and document requirements, including tax bookkeeping and the issuing and control of tax document;
- Specialized advice on the tax aspects of agreements and other business transactions.
- Succession planning;
- Advice on Brazilian tax implications of off-shore investments;
- Change in tax domicile;
- Acquisition of tax residence in Brazil;
- Tax advice on the sale and purchase of assets.
- Tax advice and assistance in the pre-operational and operational phase of infrastructure projects in the energy, telecommunications, sanitation and civil construction sectors;
- Taxation of electric power transactions, including EPC and OM projects;
- Taxation of telecommunication services and transactions;
- Advice and support in applications for regional and sector tax incentives.
Oil and Gas
- Taxes and other levieson the production of oil and natural gas (government royalties, taxes and contributions), and on the import, refinement and sale of fuels and lubricants;
- Taxation of the oil and natural gas industry;
- Tax advice and support in the importation of machinery, vessels and equipment used in the exploration and production of oil (REPETRO).