Overview (March 2000)

Introduction
Patents
Utility Models
Industrial Models and Designs
Trademarks
Awards
Names and Insignias
Origin and Geographical Indications
Copyright and Neighbouring Rights
Enforcement

Introduction

The fundamental rules regarding the protection of intellectual property are contained in two acts - the Industrial Property Code (approved by Decree-Law No 16/95 of January 24 1995), and the Copyright and Neighbouring Rights Code (approved by Decree-Law No 63/85 of March 14 1985).

Each type of industrial property must adhere to a specific registration procedures. Registration constitutes a legal presumption that all requirements necessary for the granting of industrial property rights have been fulfilled. However, any interested party may challenge this presumption. This may be done by filing an appeal before the registrar (ie, the National Institute of Industrial Property), or by filing a lawsuit requesting the annulment or cancellation of the registration of the industrial property right.

Portuguese law recognizes the following industrial property rights:

• patents;
  
  
• utility models;
  
  
• industrial models and designs;
  
  
• trademarks;
  
  
• awards;
  
  
• names and insignias of entities;
  
  
• logos; and
  
  
• origin and geographical indications.

Patents

Patents can be applied for in relation to (i) new inventions, if they imply inventive activity and have an industrial application, and (ii) new processes for obtaining already known products, substances or compositions.

An invention is considered to be new if, prior to the invention, it was not within technological knowledge of the public (in Portugal and elsewhere). An invention is considered to imply 'inventive activity' if an expert in the area considers the invention to have resulted from something more than application of already existing technology. Finally, 'industrial application' means that the object of the invention can be produced or used by industry or agriculture.

There are three different procedures for obtaining a patent, and each corresponds to a different scope of protection. Application can be made for a national patent, a European patent or an international patent by way of the Patent Cooperation Treaty. An application for any of these may be made to the National Institute of Industrial Property.

Patents are valid for 20 years from the date of application.

Utility Models

A new invention may be registered as a utility model if:

• it implies inventive activity;
  
  
• it gives an object a configuration, structure, mechanism or design that enhances its utility; and
  
  
• it has an industrial application

The protection of utility models is similar to the protection of patents except that registration is valid for 15 years following the date of the application.

Industrial Models and Designs

An industrial design or model aims to improve the form of an object (ie, geometrically aesthetically or ornamentally) - in other words, to make an object more attractive to customers. Specifically, industrial models increase the effectiveness of using products, while industrial designs improve their appearance.

Industrial models and designs that do not have practical use, industrial application nor novelty value, are not protected. Industrial property right protection for models and designs that meet the requirements for protection receive such protection for 25 years.

Trademarks

The following can be registered as trademarks:

• a symbol or group of symbols (ie, proper names, designs, letters, numbers);
  
  
• the form of a product; or
  
  
• the container of a product.

The Industrial Property Code recognizes four general types of trademark:

• service trademarks, which identify services;
  
  
• product trademarks, which identify products (industrial trademarks when they are placed on products by the manufacturer, and commercial trademarks when they are used by the entity that commercializes the product);
  
  
• basic trademarks, which identify the commercial or industrial origin of a number of products or services produced by a company that has multiple activities or by a group of companies; and
  
  
• collective trademarks, which cover the trademarks of association and certification. The trademark of association is a symbol that belongs to an association of individuals or legal entities and which is used by the respective members for products or services. The certification trademark is a symbol that belongs to the company that controls the products or services or establishes the rules with which other companies must comply.

Generally, trademarks must be presented in Portuguese or Latin, or have the general aspect of a Portuguese word. The following are exceptions:

• trademarks intended to be used simultaneously in Portugal and abroad;
  
  
• international trademarks; and
  
  
• trademarks in relation to which the applicant is not resident nor established in Portugal.

A registered trademark is valid 10 years following the date on which registration is granted and may be renewed indefinitely for equal periods of time. In order to avoid the forfeiture of a trademark, it is necessary to use the trademark and to present at the National Institute of Industrial Property every five years a declaration of intent to use.

Awards

Awards are prizes or distinctions granted to manufacturers, retailers, farmers or other businessmen. They may only be placed on the products or services in relation to which they were granted.

An award can only be added to a trademark, name or insignia of an establishment after the trademark, name or insignia has been registered. This requirement helps to guarantee the veracity of the award and the authenticity of its attribution.

An award can only be assigned in conjunction with the establishment or part of the establishment to which it is related. Awards are valid indefinitely.

Names and Insignias

The name and insignia of an entity are intended to help identify the entity, thereby allowing it to gain renown. The name and insignia of an entity can only be assigned together with the establishment to which they are related.

The registration of a name or insignia is valid for an initial period of 20 years but may be renewed indefinitely for equal periods of time.

Logos

A logo is a distinctive sign that is intended to identify an entity that renders services or offers products. A logo may be, but is not required to be, formed by letters associated to designs. Like an insignia, a logo can only be assigned in conjunction with the entity to which it is linked.

The registration of a logo is valid for an initial period of 20 years and may be indefinitely renewed for equal periods of time.

Origin and Geographical Indications

Names of origin are intended to evidence certain products as deriving from a certain geographical area. This may consist of the name of a region, place or country, or of the traditional name of a product. A geographical indication consists of the name of a region or a specific location (and, in certain cases, a country) which serves to identify the source of a product and attribute to that product a certain reputation of quality.

These industrial property rights belong to the residents or establishment owners in the geographical area and may be used by anyone in that area who exploits any type of characteristic production. Only the products that derive from the specific geographical area can use the name of origin or geographical indication (eg, champagne).

The registration of the name of origin and geographical indication must be applied for by an entity representing the area, place or region.

The registration of a name of origin or a geographical indication is valid indefinitely.

Copyright and Neighbouring Rights

The law protects the expression of works that are intellectual creations. Intellectual creations may be of literary, scientific or artistic nature. Copyright is protected upon the creation of a work; it does not have to be registered to obtain legal protection. Copyright belongs to the creator of the work, unless otherwise agreed by contract.

Copyright includes economic and moral rights. The economic rights include the right to authorize third parties to use the work. Economic rights may be transferred by notarial deed. Moral rights, however, may not be legally transferred. Moral rights include the right to claim to be the author of a work and the right to ensure the work's integrity and authenticity remain intact.

Copyright expires 70 years after the death of the creator of the work.

The works of actors, the products of record and video producers, and the broadcasts of radio stations are protected by the neighbouring rights rules.

Enforcement

There are three primary courses of action against the infringement of intellectual property rights - a lawyer's warning letter, action by the public prosecutor, and court intervention.

First, a lawyer may send a warning letter by registered mail to the counterfeiter, threatening him with seizure, payment of compensation for damages, and imprisonment. Such a letter is usually quite effective as both the Industrial Property Code and the Copyright and Neighbouring Rights Code provide for imprisonment as a sanction for intellectual property right infringement.

Second, a complaint to the government department responsible for the control of economic activities or to the public prosecutor may be made The government may intervene against counterfeiting and other intellectual property right infringements and may seize infringing goods. Following a complaint from the property right owner, the public prosecutor may make formal accusations and send the file to the criminal court for trial. The owner of the property right can intervene in the proceedings by filing his own charges and claiming compensatory indemnity.

Finally, if a case is complex (ie, it entails the interpretation of complicated legal provisions), it is preferable to file an action before the commercial court (in case of industrial property rights infringement) or before the civil courts (in case of copyrights infringement). The court may be asked to first grant an injunction against further infringement of the intellectual property right, and then to reward the owner with compensatory damages.

For further information on this topic please contact Ana Teresa Pulido at AM Pereira, Sáragga Leal, Oliveira Martins, Júdice e Associados by telephone (+351 21 319 73 03) or by fax (+351 21 319 73 09) or by e-mail (atp@plmj.pt).
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