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11 August 2003
Portugal is a member of the European Union, the World Intellectual Property Organization (WIPO) and the World Trade Organization, and is thus bound by the rules of the treaties signed in the context of such membership, as well as by EU directives and regulations.
Industrial property rights are governed by the Industrial Property Code, as most recently amended by Decree-Law 36/2003, which came into force on July 1 2003.
In order to be effective, industrial property rights must be registered. The National Industrial Property Institute (INPI) is the Portuguese office with competence to examine registration applications and decide whether to accept registration. Interested parties can appeal its decisions before the competent courts.
Given the economic importance of industrial property rights and the need to control unfair competition, the infringement of industrial property rights can be penalized either as a criminal or as an administrative offence.
Copyright and related rights are governed by the Copyright and Related Rights Code, as most recently amended by Decree-Law 334/97, which is currently being reviewed.
Finally, Decree-Law 252/94 concerns the protection of computer programs and implements the EU Computer Program Directive (91/250/EEC).
Patents protect new inventions, as well as new methods of obtaining products, substances or compounds that are already known, which involve an inventive step and which are capable of being used for industrial or agricultural purposes.
The owner of a patent is the inventor, unless the invention is created by an employee working under an employment contract. In this case the patent belongs to the employer.
When applying for registration, according to the intended scope of protection to be conferred by registration, an inventor may choose:
The patent lasts for 20 years, as of the date of filing. With regard to medicinal products and phytosanitary products, this period can be extended once all the requirements for granting a supplementary protection certificate are complied with (Council Regulation (EEC) 1768/92 and European Parliament and Council Regulation (EC) 1610/96).
The owner of the rights conferred by the patent cannot prevent acts relating to a product covered by the patent after that product has been put on the market in the European Economic Area, either by the patent owner or with its consent, except for biological materials obtained through the reproduction of a biological material, if such reproduction is a result of the normal use of the biological material and providing that result will not be used for further reproductions.
The patent must be exploited directly by the owner or through a third party in order to meet the needs of the national market, within either (i) four years of the date of filing the application, or (ii) three years of the granting of the patent, whichever is the later.
Compulsory licences may be granted on a non-exclusive basis:
Utility models also protect new inventions, although through an easier and faster administrative procedure than that which is set forth for patents. Utility models can also be granted provisionally, provided that examination is not required and the application is not opposed by an interested third party.
The same invention can be the object of a patent and utility model application. In such cases the utility model loses its effectiveness once the patent is granted.
The legal framework applicable to utility models is similar to that laid down for patents, although protection lasts only for a period of six years from the date of the application. The term can be renewed twice for a further two years, and so the maximum period of protection stands at 10 years.
Topographies of semiconductor products
Topographies of semiconductor products are also protected by the Portuguese Industrial Property Code. Again, the applicable legal framework is similar to that laid down for patents, and the rights granted remain valid for 10 years as of the date of filing of the application or starting from the first date of use, if this was prior to the date of filing.
For the purposes of the application of the Industrial Property Code, and in line with the EU Design Directive (98/71/EC), a 'design' is the appearance of the whole or a part of a product resulting in particular from the features of the lines, contours, colours, shape, texture and/or materials of the product itself and its ornamentation.
The code grants protection not only to new designs or models with individual character, but also to designs or models that, while not entirely new, create new combinations or arrangements of known elements in such a way as confers individual character on the object.
The design or model shall be considered new if, before the date of filing or, if priority is claimed, the date of priority, no identical design or model has been made available to the public.
The regime applicable to designs or models is also similar to that in force for utility models. The rights conferred by registration are valid for five years as of the date of filing and are renewable for further five-year periods up to a maximum of 25 years.
Textile and clothing industry
Designs or models for the textile and clothing industry, or others as determined by regulation of the Ministry of Economy, may be the object of a request for prior protection. This legislative measure is informed by the need to protect designers in such an important sector of Portuguese industry.
A request for prior protection must be deposited with entities with which the INPI can agree on protocols, together with representations of the products concerned. The relevant entity will then submit the request to the INPI. Protection will be granted for six months as of the date of presentation of the request to the INPI, and grants priority for the purposes of an eventual registration application for the design or model.
During the validity of the prior protection of a certain design, only the beneficiary may apply for registration.
In line with the Trademark Directive (89/104/EEC) the Portuguese Industrial Property Code provides that a trademark may consist of a sign which is capable of being represented graphically - including personal names, designs, letters, numerals, or the shape of goods or their packaging, or even a slogan - provided that the sign is capable of distinguishing the products or services of an undertaking from those of other undertakings. The same trademark can only have one registration in relation to a certain product or service.
The use of a non-registered trademark for a period of less than six months grants the user priority to register the trademark within that six-month period, starting from the date on which the trademark was used for the first time, as well as the opportunity to react against other applications filed by third parties.
Portuguese trademark law grants special protection to well-known trademarks, as well as to trademarks that have won a reputation both in Portugal and in the European Union. It provides that the registration of any sign which is similar or identical to a well-known trademark, or which can be associated with its distinctive character or take advantage of the reputation of a trademark, shall be refused. However, third parties can only claim against the registration of these trademarks if they have already registered the trademark on which the claim is grounded.
In order to protect a trademark, the applicant must file an application for registration with the INPI.
Protection lasts for 10 years as from the date of registration and can be renewed indefinitely for further 10-year periods.
Nonetheless, every five years as of the date of registration, except where renewal fees are due, a declaration of intent to use the trademark must be presented to the INPI.
The trademark does not entitle the owner to prevent its use in relation to goods which have been put on the market directly by the owner or with its consent in the European Economic Area, unless there are legitimate reasons - in particular where the condition of the goods is changed or impaired after they have been put on the market.
Trademark infringement - counterfeit goods
A trademark is infringed where it is used in the course of trade without the consent of the owner, provided that the following conditions are met:
Trademark infringement may be penalized by up to three years' imprisonment.
The Industrial Property Code also protects the owners of company names and logos.
The name of a company may consist of:
A logo is any sign consisting of a figure or drawing, either on its own or combined with the name of the establishment or other words, as long as the whole symbol is capable of distinguishing that establishment from others.
In view of the nature of the rights in question, the legal framework applicable to company names and logos is very similar to that governing trademarks.
A trade name is valid for 10 years and renewable for further 10-year periods.
Copyright law protects original works such as books, newspapers, dramatical and musical works, works of literature and art, photographic works and the like. However, it does not cover:
Works will be protected as long as they meet the requirements of originality, individuality and fixation.
Scope of protection
Copyright covers the rights of:
It also covers the right to prevent circulation of the work and to stop its utilization if there are moral reasons that must be taken in account.
The request for registration is filed with the General Inspectorate of Cultural Activities and an examination is conducted by an expert.
The examination is basically a comparison with all previously registered works in order to confirm that the work is in fact original.
Registration is not a requirement for protection, although the title of the unpublished work and the titles of newspapers and other periodical publications must be registered in order to be protected.
Copyright belongs to the intellectual creator of the work - the author. Where a work is commissioned, copyright belongs to the intellectual creator of the work, unless the parties agree otherwise.
Copyright in collective works is attributed to the single or collective entity which organized and directed the work's creation and in whose name it has been disseminated or published. In case of computer-generated works, computer programs created as part of company activities are to be considered collective works.
Finally, in the case of works of joint authorship/collaboration, copyright belongs to each collaborator according to the rules of co-ownership.
The economic rights of the author are protected for 70 years, while the author's moral rights are protected in perpetuity.
Penalties for infringement
Copyright infringement is punishable by fines of up to €124,700 (rising to €249,400 in case of repetition), or €74,820 in case of negligence. The minimum fine that will be imposed is €74,820 (rising to €149,640 in case of repetition), or €24,940 in case of negligence. Infringements may also be punished by up to three years' imprisonment (increased to six years in case of repetition).
In addition, counterfeited works will be confiscated and declared lost in favour of the state.
Exercise of rights
In certain situations use of the copyrighted work is free, with no need for the author's authorization. The reproduction or use of lawfully published works in Braille or another system for blind persons is permitted, provided that such reproduction or use is not for profit-making purposes. Moreover, copies made exclusively for scientific or humanitarian purposes of works which are not commercially available, or which are impossible to obtain, are allowed for the period necessary for their use. The law also allows copying for exclusive private use, provided that (i) this does not harm the normal exploitation of the work nor cause unjustified impairment to the author's legitimate interests, and (ii) the reproduction is not used for any purposes of public communication or commercialization whatsoever.
The original holder of the work may transfer the economic rights, partially or in their entirety, and temporarily or permanently. Simple authorization granted to a third party to disclose, publish, use or exploit a work in any way must be in writing, and shall be considered non-exclusive and subject to payment. The written authorization must specifically state the authorized form of disclosure, publication and use, as well as the relevant conditions governing duration, area and remuneration.
Copyright protection also covers moral rights, such as:
All moral rights remain with the author both throughout his lifetime and after his death.
Neighbouring or related rights
In addition to copyrighted works, the following works benefit from legal protection:
All neighbouring rights elapse after 50 years.
For further information on this topic please contact César Bessa Monteiro at Abreu Cardigos & Associados by telephone (+351 21 7231800) or by fax (+ 351 21 7231899) or by email (email@example.com).
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César Bessa Monteiro