Industrial Property Code
Decree-Law No. 143/2008 of July 25, 2008
ENTRY INTO FORCE: October 1, 2008
TITLE I General part
CHAPTER I General provisions
Article 1 FUNCTION OF INDUSTRIAL PROPERTY
The function of industrial property is to guarantee fair competition by
awarding private rights over technical processes of production and the
development of wealth.
Article 2 SCOPE OF INDUSTRIAL PROPERTY
Industry and trade, in their strict sense, the fishery, agriculture,
forestry, stockbreeding and extractive industries, as well as all natural
or manufactured products and services, fall within the scope of industrial
property.
Article 3 PERSONAL SCOPE OF APPLICATION
1. This code applies to all natural or legal persons of Portuguese
nationality or nationals of the countries belonging to the International
Union for the Protection of Industrial Property, hereinafter referred
to as the Union, under the terms of the Paris Convention of 20 March 1883
and its revisions and the World Trade Organization, hereinafter referred
to as the WTO, without depending on the condition of residence or
establishment, with the exception of special provisions on competence
and procedure.
2. Nationals of any other states that have an effective, non-fictitious
residence or industrial or commercial establishment in one of the countries
of the Union or WTO are considered equivalent to nationals of the countries
of the Union or WTO.
3. Regarding any other foreign nationals, the provisions of conventions
between Portugal and their countries shall be considered or, if there
are none, the principles of reciprocity.
Article 4 EFFECTS
1. The rights granted by patents, utility models and registrations cover
the whole national territory.
2. Without prejudice to the following paragraph, the granting of industrial
property rights entails a mere legal assumption of the requirements for
granting them.
3. The registration of awards guarantees the veracity and authenticity
of ownership and guarantees their owners exclusive use for an indefinite
time.
4. Registrations of trademarks, logotypes, appellations of origin and
geographical indications are grounds for refusal or annulment of company
names that may be confused with them, if the applications for authorisation
or alteration are submitted later than registration applications.
5. Suits annulling acts arising from the previous paragraph are
identification of the right to which they refer.
Article 5 PROVISIONAL PROTECTION
1. An application for a patent, utility model or registration provisionally
grants the applicant the right, as of its publication in the Industrial
Property Bulletin, to the same protection as that granted by the right,
to be considered in the calculation of any compensation.
2. The provisional protection referred to in the previous paragraph is
opposable, even before publication, by anyone who has been notified of
the submission of the application and received the details of the case.
3. Verdicts in suits brought on the basis of provisional protection cannot
be delivered before the final granting or refusal of a patent, utility
model or registration and the case shall be suspended at the end of the
arguments.
Article 6 RIGHTS TO GUARANTEE
The rights emerging from patents and utility models and registrations
of topographies of semiconductor products, designs or models and trademarks
and other distinctive trade signs shall be subject to attachment and seizure
and may be attached or subject to other forms of confiscation of property
under the law.
Article 7 PROOF OF RIGHTS
1. Proof of industrial property rights shall be given by means of grant
documents corresponding to their different forms.
2. Grant documents must contain the necessary details for perfect
identification of the right to which they refer.3. Industrial property certificates issued by international organisations
for use in Portugal have the same value as the grant documents referred
to in the previous paragraphs.
4. Owners of rights may be issued certificates with similar contents to
their document of title.
5. The following may also be issued at the request of an applicant or
owner:
a) Application certificates;
b) Protection certificates for industrial property rights granted by
international organisations for use in Portugal.
Article 8 RE-ESTABLISHMENT OF RIGHTS
1. The rights of applicants for or owners of industrial property rights
who, in spite of all the attention required by the circumstances, have
failed to respect a time limit, noncompliance with which may result in
their not being granted or affect their validity, and the cause is not
directly imputable to them, shall be re-established at their request.
2. A duly justified request shall be submitted in writing within two months
of the cessation of the circumstance that prevented compliance with the
time limit but will only be allowed, in any case, within one year of the
end of the time limit missed.
3. In the case of the time limits mentioned in Article 12, requests are
only allowed within two months as of the end of the time limit missed.
4. The omitted act must be performed within the two month period referred
to in paragraph 2 along with a payment of a fee for the re-establishment
of rights.
5. The provisions of this article do not apply to the time limits referred
to in paragraphs 2 or 4 and Articles 17 and 350, if it is a question of
extending a time limit set forth in this code and if a declaration of
expiry case is pending for that industrial property right.
6. Applicants for or owners of rights that are reestablished may not invoke
them to a third party who, in good faith, in the period between the loss
of the rights granted and the publication of the notice of reestablishment
of the rights, has begun operation or sale of the object of the right
or has made actual, serious preparations for its operation or sale.
7. Third parties who may avail themselves of the provision in the previous
paragraph may oppose the decision to re-establish rights of the applicant
or owner within two months of the date of publication of the notice of
re-establishment of the right.
CHAPTER II Administrative formalities
Article 9 LEGITIMACY TO PERFORM ACTS
Those who have an interest in the legal acts have the legitimacy to perform
them before the National Industrial Property Institute.
Article 10 LEGITIMACY TO PROMOTE ACTS
1. The acts and terms of the procedure may only be promoted:
a) By the interested party or owner of the right, if established or domiciled
in Portugal or by a person who is established or domiciled in Portugal
and, while not an official agent of the industrial property, a lawyer
or solicitor, submits power of attorney for the purpose;
b) By the interested party or owner of the right, if established or domiciled
in a foreign country;
c) By an official industrial property agent;
d) By a representing lawyer or solicitor.
2. The persons mentioned in subparagraph b) of the previous paragraph
shall:
a) Indicate an address in Portugal, or
b) Indicate an email address or fax number.
3. The entities mentioned in the previous paragraphs may always have access
to the case files and obtain photocopies of documents of interest, which
shall be duly authenticated on request.
4. In the case set forth in paragraph 2, notifications shall be sent for
all legal purposes to the address in Portugal, the email address or fax
number indicated by the interested party, owner of the right or a
representative.
5. When parties are represented by attorneys, the notifications shall
be sent to them directly.
6. Unless otherwise indicated by the applicant for or owner of the right,
notifications shall be sent to the last attorney intervening in the case,
irrespective of whoever pays the maintenance fees.
7. If there are irregularities or omissions in the promotion of a certain
act, the party shall be ordered directly to comply with the applicable
legal provisions within no more than one month, on pain of ineffectiveness
of the act, though without forfeiting any priorities to which they are
entitled.
Article 10-A WAY OF PERFORMING ACTS
1. The acts set forth in this code and communications between the National
Industrial Property Institute and interested parties may be performed
by electronic data transmission.
2. If an act is performed by electronic data transmission, all other acts,
including communications with the National Industrial Property Institute,
should preferably be performed via the same medium.
3. The appending of a qualified or advanced electronic signature in acts
performed by interested parties or the National Industrial Property
Institute for all purposes replaces and dispenses with a handwritten
signature on paper, provided that the requirements of the state’s electronic
certification system are respected.
Article 11 PRIORITY
1. Save for the exceptions set forth in this code, a patent, utility model
or registration is granted to whomsoever first submits an application
with all the required elements.
2. If applications are submitted by post, precedence shall be assessed
by the date of registration or postmark.
3. In the event of two applications for the same right being simultaneous
or of the same priority, the cases shall not proceed until the interested
parties have settled the issue of priority, by agreement or in a competent
court or arbitration tribunal.
4. (Revoked.)
5. (Revoked.)
6. If an application is not initially accompanied by all the required
elements, priority shall count from the date and time at which the last
missing document is submitted.
7. If an invention, design or model, trademark, logotype, award, designation
of origin or geographical indication is altered in relation to the initial
publication, a new notice shall be published in the Industrial Property
Bulletin and the priority of the alteration shall count from the date
on which it was requested.
8. Without prejudice to Article 51(4) and Article 117(3), if, as a result
of the examination, it is found that an application for a patent, utility
model or registration has not been correctly formulated, the applicant
shall be instructed to submit it in the form indicated.
9. Before a decision is issued, applicants can, on their own initiative,
reformulate an application in a different form from that initially
submitted.
10. After a decision has been issued, during the time limit for appeals
or, if an appeal has been lodged, until the ruling has been confirmed,
applicants may transfer the rights pertaining to an application, limit
its object or add documents or statements to the case file.
11. In the case set forth in the previous paragraph, with a view to a
possible appeal, any other interested party may add documents or statements
to the case file.
12. In the cases set forth in paragraphs 8 and 9, applications are published
again in the Industrial Property Bulletin, while the priorities to which
the applicants were entitled are maintained.
13. Until a decision is issued, other formal rectifications may be
authorised, provided that they are requested with due justification, which
shall be published.
Article 12 CLAIMING THE RIGHT TO PRIORITY
1. Anyone who has submitted a regular application for a patent, utility
model, certificate of utility, inventor’s certificate, registration of
a design or model or a trademark in any country of the Union or WTO or
to any intergovernmental body with the power to grant rights having effect
in Portugal is entitled, as is his successor for the purpose of submitting
the application in Portugal, to the right to priority established in Article
4 of the Paris Convention of the Union for the Protection of Industrial
property.
2. Any application made with the same value as a regular, national
application under the law of each member state of the Union or WTO or
bilateral or multilateral treaties between members of the Union or WTO
shall grant a property right.
3. A regular, national application is understood to be any application
for which it is possible to establish the date on which it was submitted
in the country in question, irrespective of anything that may in any way
subsequently affect it.
4. As a result, an application submitted later in Portugal before expiry
of its priority period cannot be invalidated by reason of events occurring
in this period, for example another application or publication or
exploitation of the invention, design or model.
5. A later application with the same object as a prior first application
shall be considered a first application, the date of submission of which
will mark the beginning of the priority period, provided that, on the
date of submission of the latter, the prior application has been withdrawn,
abandoned or refused without undergoing public examination, without any
rights persisting and without having served as a basis for a priority
right claim.
6. In the case set forth in the previous paragraph, the prior application
may not serve as a basis for a priority right claim again.
7. Persons wishing to avail themselves of priority of a prior application
must draft a statement indicating the country, date and number of this
application. This statement may be submitted within one month of the end
of the priority period if it is a registration application, or within
four months of the end of the priority period in the case of a patent
or utility model application.
8. If several priorities are claimed in one application, the period shall
count from the oldest priority date.
9. Priority of an application for a patent, utility model or registration
of a design or model cannot be denied on the grounds that the applicant
claims several priorities, even if they come from different countries,
or on the grounds that an application claiming one or more priorities
contains one or more elements that were not included in the applications
for which priority is claimed, on the condition that, in both cases, there
is unity of invention or creation in the case of designs or models.
10. Priority cannot be denied on the grounds that certain elements of
the invention or, in the case of designs or models, of the creation for
which priority is claimed, do not figure among the claims made or
reproductions of the designs or models submitted in the application in
the country of origin, provided that all the components of the application
accurately show these elements.
11. If the examination reveals that a patent or utility model application
contains more than one invention or, in the case of multiple applications
for registration of designs or models, that the products do not belong
to the same international classification class of industrial designs and
models, applicants may, on their own initiative or in compliance with
an order, divide the application into a certain number of split applications,
with each maintaining its original date of application and, if applicable,
the right to priority.
12. Applicants may also divide an application for a patent, utility model
or registration of a design or model on their own initiative, and the
date of each split application will remain the same as that of the original
application and, if applicable, the priority right.
Article 13 PROOF OF PRIORITY RIGHT
1. The National Industrial Property Institute may require anyone invoking
a priority right to, within two months of the order, submit an authenticated
copy of the first application, a certificate of the date of its submission
and, if necessary, a Portuguese translation.
2. The time limit indicated in the previous paragraph may be extended
once, by one month.
3. Submission of the copy of the application within the time limit set
in the previous paragraph is free of charge.
4. Failure to comply with this article shall result in loss of the priority
right claimed.
Article 14 REGULARISATION
If any irregularities are detected before the publication of the notice
in the Industrial Property Bulletin, the applicant will be ordered to
make the necessary regularisations.
Article 15 NOTARISATION OF SIGNATURES (Revoked.)
Article 16 NOTIFICATIONS
1. The parties involved in an administrative procedure shall be notified
of the final decisions of the National Industrial Property Institute,
said notifications being given exclusively by publication in the Industrial
Property Bulletin whenever a grant is made in cases in which no claim
has been submitted.
2. If there are objections in any procedure, the National Industrial
Property Institute shall inform the applicant immediately.
3. Similar notifications will also be made of contestations, expositions,
applications for expiry and other procedural components attached to the
case files.
4. In the case set forth in paragraph 1, in which notification is given
exclusively by publication in the Industrial Property Bulletin, the
National Industrial Property Institute shall advise applicants of
publication by the means it deems appropriate.
Article 17 TIME LIMITS FOR OPPOSITION AND REPLY
1. The time limit for submitting oppositions is two months as of publication
of the application in the Industrial Property Bulletin.
2. Applicants may reply to oppositions within two months as of notification
thereof.
3. If no opinion has been issued on an application and it is necessary
to clarify the procedure, additional expositions may be accepted.
4. During the time limits established in paragraphs 1 and 2 and on justified
request by the interested party, the National Industrial Property Institute
may grant a single extension of one month for opposition and reply, in
which case the opposing party shall be notified.
5. (Revoked.)
6. (Revoked.)
7. (Revoked.)
Article 17-A SUSPENSION OF STUDY
1. On request by the interested party and with the assent of the opposing
party, the study of the case may be suspended for no longer than six months.
2. The study may also be suspended ex officio or at the request of the
interested party for the duration of a prejudicial cause likely to affect
the decision thereon.
Article 18 DUPLICATE OF ARGUMENTS (Revoked.)
Article 19 ADDITION AND RETURN OF DOCUMENTS
1. Documents are attached to the piece in which the facts to which they
refer are alleged.
2. If it is demonstrated that it is impossible to obtain them in due time,
they may be attached to the case file after authorisation, in which case
the opposing party will be notified.
3. The addition of irrelevant or unnecessary documents shall be refused
even if added in due time, as shall any texts written in disrespectful
or inappropriate terms or containing superfluous repetition of allegations
already made.
4. The documents referred to in the previous paragraph shall be returned
to the parties, who will be ordered by letter and through their attorney
to take delivery of them by a certain deadline, after which they will
be filed outside the case files.
5. The notifications referred to in the previous paragraph shall also
be sent to the parties.
Article 20 LATE OPPOSITIONS (Revoked.)
Article 21 INSPECTIONS
1. In order to substantiate or clarify allegations made in the procedure,
an interested party may submit a justified request to the National
Industrial Property Institute for an inspection of any establishment or
other site, though the request may not be granted without the subject
of the inspection being heard.
2. The costs of inspection shall be borne by the person requesting it.
3. The party that requested the inspection is free to withdraw the request
before it is conducted.
4. The amounts deposited shall be returned at the interested party’s request,
in the event of timely withdrawal or denial of the application for an
inspection.
5. An inspection may also be conducted on the initiative of the National
Industrial Property Institute, if it is essential to a clear understanding
of the case.
6. Refusal to cooperate when the parties involved in any case are so requested
by the National Industrial Property Institute, for clarification of the
situation, shall be freely considered at the time of the decision, without
prejudice to the reversal of the burden of proof if the opposing party
has deliberately made it impossible.
Article 22 SUBSEQUENT FORMALITIES
After the time limits set forth in Article 17 have expired, the parties’
allegations are examined and considered and the findings will be added
to the case file for a decision to be made.
Article 23 ALTERATION OF DECISION
1. If within two months of publication of a decision, it is decided that
it should be altered, the case will be submitted to a higher authority
along with all the known facts that justify reversal of the decision made.
2. Higher authority is understood to be the immediate superior of the
person who actually signed the decision to be altered.
Article 24 GENERAL GROUNDS FOR REFUSAL
1. The following are general grounds for refusal:
a) Failure to pay fees;
b) Failure to submit the necessary elements for full documentation of
the case;
c) Non-fulfilment of essential formalities or procedures for granting
of the right;
d) (Revoked.)
e) (Revoked.)
f) Submission of a request with an impossible or unintelligible object.
2. In the cases set forth in the previous paragraph, the requested act
cannot be submitted for a decision without the applicant being ordered
in advance to come and regularise it by a certain deadline.
Article 25 ALTERATION OR CORRECTION OF NONESSENTIAL ELEMENTS
1. Any alteration or correction that does not affect the essential elements
or characteristics of the patent, utility model or registration may be
authorised in the same case.
2. No application for an alteration or correction set forth in this article
may be accepted if a declaration of expiry is pending for the same industrial
property right.
3. The alterations or corrections referred to in paragraph 1 shall be
published for the purpose of appeal as set forth in articles 39 et seq.
of this code and noted in the files in question.
Article 26 DOCUMENTS ATTACHED TO OTHER CASE FILES
1. With the exception of the power of attorney, which is always attached
to each case file, even if the applicant is represented by the same attorney,
the documents pertaining to applications may be attached to one and
mentioned in the others.
2. In the event of an appeal, as set forth in Articles 39 et seq., appellants
are obliged to use certificates to complete, at their own cost, cases
in which said documents have been mentioned.
3. Failure to comply with the previous paragraphs must be mentioned in
the letter sending the case to court.
Article 27 HANDING OVER OF GRANT DOCUMENTS
1. Grant documents to industrial property rights shall only be issued
and handed over to holders on application one month after the end of the
appeal period or, if an appeal has been lodged, after the final judicial
or arbitral ruling has been made.
2. (Revoked.)
Article 28 TIME LIMITS
1. The time limits stipulated in this code are continuous.
2. (Revoked.)
3. (Revoked.)
Article 29 PUBLICATION
1. Acts that must be published are given notice to the parties and the
public by publication in the Industrial Property Bulletin.
2. Publication in the Industrial Property Bulletin serves as direct
notification to the parties and, unless otherwise indicated, marks the
beginning of the time limits set forth in this code.
3. The parties in the case or any other interested parties may request
the National Industrial Property Institute to issue them with a certificate
attesting to the final decision on the application and its grounds, even
before the notice is published in the Industrial Property Bulletin.
4. Any interested party may also request a certificate of entries, documents
and files and photographic or ordinary copies of designs, photographs,
plans and models submitted with applications for a patent, utility model
or registration, but only if the case has reached the publicity phase,
the rights of third parties are not infringed and none of the documents
are classified or disclose trade or industrial secrets.
5. The publicity phases shall be deemed to have been reached in any case
when the application is published in the Industrial Property Bulletin.
6. Without prejudice to the provisions of the previous paragraphs, the
National Industrial Property Institute may provide information on
applications to register trademarks, logotypes, awards, appellations of
origin and geographical indications, even before the publicity phase has
been reached.
Article 30 ANNOTATION
1. The following shall be annotated at the National Industrial Property
Institute:
a) Transfer and renunciation of private rights;
b) Grant of contractual or mandatory exploitation licences;
c) The constitution of rights of guarantee or use and the seizure,
confiscation and other apprehensions of goods performed under the law;
d) Lawsuits to annul or declare the nullity of private rights;
e) Events or decisions that change or eliminate private rights.
2. The events referred to in the previous paragraph shall only be effective
with regard to third parties after the date of their annotation.
3. Events requiring annotation, even if not yet annotated, may be invoked
by the parties or their successors.
4. Annotation is carried out at the request of any of the interested parties
accompanied by documents proving the events to which they refer.
5. (Revoked.)
6. Events annotated are also added to the document of title, if any, or
to a document attached thereto.
7. A notice of an annotation shall be published in the Industrial Property
Bulletin.
CHAPTER III Transfer and licences
Article 31 TRANSFER
1. The rights emerging from patents, utility models, registrations of
topographies of semiconductor products, designs or models and trademarks
can be totally or partially transferred free of charge or against payment.
2. The previous paragraph applies to rights emerging from the applications
in question.
3. (Revoked.)
4. (Revoked.)
5. If a logotype or trademark contains the individual, business or company
name of the holder of or applicant for registration or his representative,
a clause is necessary for its transfer.
6. A transfer between living persons shall be proven by a written document.
However, if the annotation of the transfer is requested by the transferring
party, the recipient must also sign the document proving it or make a
statement accepting the transfer.
Article 32 CONTRACTUAL LICENCES
1. The rights referred to in paragraph 1 of the previous article may be
subject to a total or partial exploitation licence, free of charge or
in return for payment, in a certain area or throughout the country for
the whole of their duration or for a shorter time.
2. The previous paragraph applies to the rights emerging from the
applications in question, though refusal shall result in expiry of the
licence.
3. Licence contracts must be drawn up in writing.
4. Unless otherwise expressly stipulated, for all legal purposes a licensee
enjoys the faculties belonging to the holder of the right to which the
licence applies, with the exception of the provisions of the following
paragraphs.
5. The licence shall be understood to be non-exclusive.
6. An exclusive licence is one in which the holder of the right renounces
the faculty to grant other licences for the rights covered by the licence
while it remains in effect.
7. The grant of an exclusive exploitation licence does not prevent the
holder from also directly exploiting the right in the licence, unless
otherwise stipulated.
8. Unless otherwise stipulated, a right obtained in an exploitation licence
cannot be transferred without the written consent of the holder of the
right.
9. If the grant of sublicences is not provided for in the licence contract,
they may only be granted with the written authorisation of the holder
of the right.
CHAPTER IV Extinction of industrial property rights
Article 33 NULLITY
1. Patents, utility models and registrations shall be totally or partially
null:
a) If their object cannot be protected;
b) If, when granted, procedures or formalities essential to the grant
of the right have been omitted;
c) If public rules have been violated.
2. Nullity can be invoked at any time by any interested party.
Article 34 ANULLABILITY
1. Patents, utility models and registrations shall be totally or partially
annullable if the holders are not entitled to them, i.e.:
a) If the right does not belong to them;
b) If they were granted with disregard for the rights set forth in Articles
58, 59, 121, 122, 156, 157, 181, 182 and 226;
2. In the cases set forth in paragraph b) of the previous paragraph, instead
of annulment, interested parties may request the total or partial reversion
of a right in their favour, if legally able to do so.
Article 35 DECLARATION OF NULLITY AND ANNULMENT
1. A declaration of nullity or annulment may only result from a judicial
decision.
2. The Public Prosecutor’s Office or any interested party is entitled
to bring the suit referred to in the previous paragraph and, in addition
to the holder of the right registered against whom the suit is brought,
all those who on date of publication of the annotation set forth in Article
30(1)(d) have requested annotation of derivative rights at the National
Industrial Property Institute must also be cited.
3. After the judicial verdict has become final, the court secretariat
shall send to the National Industrial Property Institute, whenever possible
by electronic data transmission, a typed copy or another acceptable form
for publication of the document and notice in the Industrial Property
Bulletin and for annotation.
4. Whenever the suits referred to in this article are brought, the court
shall inform the National Industrial Property Institute of the fact, if
possible by electronic data transmission, for the purpose of annotation.
Article 36 EFFECTS OF DECLARATION OF NULLITY OR ANNULMENT
The retroactive effectiveness of a declaration of nullity or annulment
shall not prejudice the effects of compliance with the obligation, final
verdict or transaction even if not yet countersigned, or as a consequence
of similar acts.
Article 37 EXPIRY
1. Industrial property rights shall expire irrespective of their
invocation:
a) When their duration terminates;
b) On failure to pay fees.
2. Causes of expiry not provided for in the previous paragraph shall only
be effective if invoked by an interested party.
3. Any interested party may also request the annotation of expiry set
forth in paragraph 1, if this has not already been done.
Article 38 RENUNCIATION
1. Holders may renounce their industrial property rights, provided that
they so declare expressly to the National Industrial Property Institute.
2. Renunciation may be partial, if the nature of the right so allows.
3. Declarations of renunciation are made on forms that are attached to
the case files in question.
4. If a renunciation form is not signed by the party in question, his
attorney must attach power of attorney with special powers.
5. Renunciation shall not prejudice derivative rights that have been
annotated, provided that their holders are duly notified and replace the
holder of the principal right to the extent necessary to safeguard these
rights.
CHAPTER V Appeals
SUBCHAPTER I Judicial appeals
Article 39 DECISIONS PERMITTING APPEALS
The following decisions by the National Industrial Property Institute
may be appealed against in full jurisdiction to the competent court:
a) Those granting or refusing industrial property rights;
b) Those regarding transfers, licences, declarations of expiry or any
other acts that affect, alter or extinguish industrial property rights.
Article 40 COMPETENT COURT
1. The Lisbon Commercial Court is competent for the appeals set forth
in the previous article.
2. For the purposes of Articles 80 to 92 of Regulation (EC) 6/2002 of
the Council of 12 December 2001 and Articles 91 to 101 of Regulation (EC)
40/94 of the Council of 20 December 1993, the Lisbon Commercial Court
and Lisbon Court of Appeal are territorially competent in the first and
second instance, respectively.
Article 41 LEGITIMACY
1. The applicant and claimants and anyone directly and effectively
prejudiced by a National Industrial Property Institute decision are
legitimate parties to appeal.
2. Accessorily, anyone who has not submitted a claim but demonstrates
that he has an interest in maintaining decisions by the National Industrial
Property Institute may also participate in an appeal.
Article 42 TIME LIMIT
Appeals must be lodged within two months of publication in the Industrial
Property Bulletin of the decisions set forth in Article 39 or final decisions
made under Article 23 or the date of their respective certificates requested
by the claimant, if made earlier.
Article 43 REPLY LETTER
1. After the case files have been distributed, a copy of the plea is sent
to the National Industrial Property Institute with its respective documents,
so that the entity that made the appealed decision can respond as it sees
fit and forward the case files on which the decision was made to the court.
2. If the case files contain sufficient information to clarify the court,
they shall be sent within 10 days, accompanied by a reply letter.
3. Otherwise, the reply letter containing a response to the appellant’s
arguments in his plea shall be sent with the case files within 20 days.
4. If, for a justified reason, the time limits fixed in the previous
paragraphs cannot be respected, the National Industrial Property Institute
shall ask the court to extend the limits for a time and on the terms that
it deems necessary.
5. The communications referred to in this article must be made by electronic
data transmission whenever possible.
Article 44 SUMMONS BY THE OPPOSING PARTY
1. After the case files have been received by the court, the opposing
party, if any, shall be summoned to respond within 30 days, if he so wishes.
2. The summons of the party shall be carried out at the office of legal
counsel or, if there is none, at the office of the official industrial
property agent who represented the party in the administrative proceeding.
In the latter case, however, he will be warned that he will only be able
to intervene in the case if represented by counsel.
3. At the end of the time limit for a response, the case shall be adjourned
for a final decision, which shall be given in 15 days, except in the case
of just impediment.
4. A verdict that revokes or totally or partially alters the appealed
decision replaces it in the exact terms in which it was given.
5. The National Industrial Property Institute shall not, under any
circumstances, be considered an opposing party.
Article 45 REQUISITION OF EXPERTS
If, during an appeal, a question addressed requires further information
or if the court considers it advisable, the court may at any time request
and establish a date and time for the appearance of one or more experts
on whose opinion the appealed decision was based so that they can give
any necessary oral clarifications.
Article 46 APPEAL AGAINST COURT DECISION
1. Appeals may be lodged against the verdict given under the general law
of civil procedure, without prejudice to the following paragraph.
2. There shall be no appeal to the Supreme Court of Justice against decisions
by the Court of Appeal, without prejudice to cases in which it is always
admissible.
Article 47 PUBLICATION OF FINAL DECISION
Article 35(3) applies to appeals.
SUBCHAPTER II Arbitral appeal
Article 48 ARBITRATION TRIBUNAL
1. Without prejudice to the possibility of recourse to other extrajudicial
dispute settlement mechanisms, an arbitration tribunal may be set up to
try all issues that may be appealed.
2. Exceptions to the previous paragraph are cases involving third parties,
unless they agree to an arbitration agreement.
3. The arbitration tribunal may order the publication of the decision
under Article 35(3).
Article 49 ARBITRATION AGREEMENT
1. An interested party wishing to have recourse to arbitration in disputes
set forth in the previous Article may request the signing of an arbitration
agreement under the law on voluntary arbitration and agree to submit the
dispute to arbitration.
2. Submission of a request under the previous paragraph shall suspend
the time limits for court appeals.
3. Without prejudice to the following paragraph, the signing of an
arbitration agreement by the National Industrial Property Institute is
subject to the approval of the Chairperson of the Board of Directors,
which shall be given in 30 days as of the date of the request.
4. The generic binding of the National Industrial Property Institute to
institutionalised voluntary arbitration centres with powers to settle
the disputes referred to in paragraph 1 of the previous article may be
determined by order of the government member to whom the institute answers,
which shall establish the type and maximum value of disputes covered,
granting the interested parties the power to resort to these centres to
settle said disputes.
Article 50 CONSTITUTION AND FUNCTIONING
The arbitration tribunal shall be set up and function under the terms
provided for by the law on voluntary arbitration.
TITLE II Industrial Property Law
CHAPTER I Inventions
SUBCHAPTER I Patents
SECTION I General provisions
Article 51 OBJECT
1. New inventions involving inventive activity can be patented if they
have an industrial use, even if they apply to a product consisting of
or containing biological material or to a process that produces, treats
or uses biological material.
2. Patents may be obtained for any inventions, be they products or processes,
in all fields of technology, provided that these inventions comply with
the previous paragraph.
3. New processes for obtaining known products, substances or compositions
may also be patented.
4. An invention complying with the conditions set forth in paragraph 1
may be protected, at the applicant’s choice, with a patent or utility
model.
5. The same invention may be the object simultaneously or subsequently
of an application for a patent and for a utility model.
6. The successive submission of applications referred to in the previous
paragraph shall only be allowed within one year as of the date of the
first application.
7. In the cases set forth in paragraph 5, a utility model expires after
a patent has been granted for the same invention.
Article 52 LIMITATIONS ON OBJECT
1. The following are exceptions to the previous article:
a) Discoveries, scientific theories and mathematical methods;
b) Materials or substances already existing in nature and nuclear materials;
c) Aesthetic creations;
d) Schemes, rules or methods for intellectual acts, playing a game or
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doing business and computer programs, as such, with no contributions;
e) Presentations of information.
2. (Revoked.)
3. Paragraph 1 only excludes patentability if the object for which a patent
is requested is limited to the elements mentioned in it.
Article 53 LIMITATIONS ON PATENT
1. Inventions whose commercial exploitation is against the law or contrary
to public policy, public health or morality are not patentable and their
exploitation may not be considered as such due to the simple fact that
it is forbidden by law or regulations.
2. Under the previous paragraph, the following are not patentable:
a) Processes for cloning human beings;
b) Processes for modifying the germinal genetic identity of human beings;
c) The use of human embryos for industrial or commercial purposes;
d) Processes for modifying the genetic identity of animals which may cause
them suffering without any substantial medical benefit to man or animal
and also animals resulting from such processes.
the previous article, provided that this use is not included in the state
of the art;
c) A new invention that involves an inventive step and is susceptible
of industrial application relating to any isolated element of the human
body or produced in any other way by a technical process, including a
sequence or partial sequence of a gene, even though the structure of this
element is identical to that of a natural element, provided that the
industrial application of a sequence or partial sequence of a gene is
expressly observed and specifically described in the patent application;
d) An invention relating to plants or animals, if its technical feasibility
is not confined to a particular plant variety or breed of animal;
e) A biological material isolated from its natural environment or produced
on the basis of a technical process, even if it pre-exists in a natural
state;
f) An invention relating to a microbiological process or other technical
processes or products obtained by means of these processes.
2. An essentially biological process for obtaining plants or animals is
any process that consists wholly of natural phenomena, such as crossing
or selection.
3. A microbiological process is any process involving or performed upon
or resulting in microbiological material.
4. Biological material is any material that contains genetic information
and is capable of reproducing itself or being reproduced in a biological
system.
Article 55 PATENTABILITY REQUIREMENTS
1. An invention is considered new if it does not form part of the state
of the art.
2. An invention shall be considered as involving an inventive step if,
having regard to the state of the art, it is not obvious to a person skilled
in the art.
3. An invention shall be considered as susceptible of industrial application
if it can be made or used in any kind of industry or in agriculture.
Article 56 STATE OF THE ART
1. The state of the art shall be held to comprise everything made available
to the public within the country or abroad by means of a description,
by use, or in any other way, before the date of the European patent
application.
2. Additionally, the content of patent and utility model applications
filed prior to the patent application for effect in Portugal but not yet
published shall also be considered as comprised in the state of the art.
Article 57 NON-PREJUDICIAL DISCLOSURES
1. The following shall not prejudice the novelty of an invention:
a) Disclosure in official or officially recognised exhibitions falling
within the terms of the Convention of International Exhibitions if the
application for the patent is filed in Portugal within six months;
b) Disclosure resulting from evident abuse of any kind in relation to
the inventor or his successor in title or publications made unduly by
the National Industrial Property Institute.
2. Subparagraph a) of the previous paragraph shall only apply if the
applicant proves, within one month as of the date of filing the patent
application, that the invention was actually displayed or disclosed as
set forth in said subparagraph and submits a certificate issued by the
body in charge of the exhibition indicating the date on which the invention
was first displayed or disclosed at the exhibition and the name of the
invention in question.
3. At the applicant’s request, the time limit indicated in the previous
paragraph may be extended once only for the same period.
Article 58 GENERAL RULE ON THE RIGHT TO PATENT
1. The right to patent shall belong to the inventor or his successors
in title.
2. If two or more persons have made an invention, any of them may apply
for a patent on behalf of all.
Article 59 SPECIAL RULES ON ENTITLEMENT TO A PATENT
1. If an invention was made during the performance of an employment contract
in which inventive activity is provided for, the right to the patent belongs
to the company.
2. In the case referred to in the previous paragraph, if the inventive
activity is not especially remunerated, the inventor is entitled to
remuneration in keeping with the importance of the invention.
3. Irrespective of the conditions set forth in paragraph 1:
a) If an invention is part of its activity, the company has a pre-emptive
right to the patent in return for remuneration in keeping with the importance
of the invention and may assume ownership of it or reserve the right to
its exclusive exploitation, acquisition of the patent or the ability to
apply for or acquire a foreign patent;
b) The inventor shall inform the company of the invention that he has
made within three months of the date on which it is deemed to have been
completed;
c) If, during this period, the inventor applies for a patent for this
invention, the time limit for informing the company is one month as of
the filing of the application with the National Industrial Property
Institute;
d) Breach by the inventor of the obligations set forth in subparagraphs
b) and c) shall result in general civil and labour-law liability;
e) The company may exercise its pre-emptive right within three months
of receipt of the inventor’s notification.
4. If, under subparagraph e) of the previous paragraph, the remuneration
owed to the inventor is not paid in full within the established time limit,
the company shall forfeit the right to the patent referred to in the previous
paragraphs to the inventor.
5. Inventions for which a patent has been applied for in the year following
the date on which the inventor left the company shall be considered to
have been made during the performance of the employment contract.
6. If, in the cases set forth in paragraph 2 and 3, the parties do not
reach an agreement, the question shall be settled by arbitration.
7. Unless otherwise agreed, paragraphs 1, 2, 4 and 5 shall apply to inventions
made to order, with the necessary adaptations.
8. Unless otherwise set forth, the previous provisions shall be applicable
to the state and administrative bodies and their employees and service
providers for any purpose.
9. The inventor’s recognised rights may not be renounced in advance.
Article 60 INVENTOR’S RIGHTS
1. If the patent is not applied for in the inventor’s name, he has the
right to be mentioned as such in the application and the patent.
2. If he so requests in writing, the inventor may not be mentioned as
such in any publications resulting from the application.
SECTION II Patent process
SUBSECTION I National route
Article 61 FORM OF APPLICATION
1. Patent applications shall be submitted on a form in Portuguese that
indicates or contains:
a) The applicant’s name, nationality, address or place of business, tax
number if resident in Portugal and email address, if any;
b) A name or title summarising the invention;
c) The name and country of residence of the inventor;
d) The country in which the first application was filed, the date and
number of this application, if the applicant wishes to claim a priority
right;
e) A mention that he has applied for a utility model for the same invention,
if applicable, under Article 51(5);
f) The signature or electronic ID of the applicant or his representative.
2. Fancy expressions for the invention shall not be the subject of claims.
3. For the purpose of Article 11(1), priority shall be granted to a patent
application that, in addition to the details required in paragraph 1(a),
first indicates the number and date of the previous application and the
body to which it was submitted, when priority of a prior application is
claimed.
Article 62 DOCUMENTS TO BE SUBMITTED
1. The application shall be accompanied by the following information in
Portuguese:
a) Claims as to what is considered new and characterizes the invention;
b) Description of the invention;
c) Drawings required for a perfect understanding of the description;
d) Summary of the invention.
2. The elements referred to in the previous paragraph shall comply with
the formal requirements fixed by order of the Chairperson of the Board
of Directors of the National Industrial Property Institute.
3. Claims shall define the object of the protection requested and shall
be clear, concise, correctly written and based on a description. They
shall contain, when appropriate:
a) A preamble mentioning the object of the invention and the technical
characteristics required to define the elements claimed, but that, in
combination, form part of the state of the art;
b) A description preceded by the words “characterized by” and describing
the technical characteristics that, in connection with the characteristics
indicated in the previous subparagraph, define the extent of the protection
requested.
4. The description shall give a brief, clear indication, with no
reservations or omissions, of everything making up the invention and contain
a detailed explanation of at least one way of making the invention, so
that any person skilled in the art may carry it out.
5. Drawings must consist of figures confined to the number strictly
necessary for an understanding of the invention.
6. The summary of the invention for publication in the Industrial Property
Bulletin:
a) Consists of a brief overview of the description, claims and drawings
and preferably shall not contain more than 150 words;
b) Is exclusively for technical information purposes and shall not be
taken into consideration for any other purpose, such as determining the
extent of the protection requested.
7. The elements set forth in the previous paragraphs may be submitted
in English and the applicant shall be notified to submit a Portuguese
translation under the terms of Article 65.
Article 62-A PROVISIONAL PATENT APPLICATION
1. Anyone wishing to ensure the priority of a patent application but not
having all the elements set forth in the previous article may file a
provisional application and postpone the submission of these elements
for a maximum of 12 months.
2. For the purpose of Article 11(1), priority is granted to a provisional
application drafted in Portuguese or English that indicates:
a) The applicant’s name, nationality, address or place of business, tax
number if resident in Portugal and email address, if any;
b) A name or title summarising the invention;
c) The name and country of residence of the inventor;
d) The signature or electronic ID of the applicant or his representative;
e) A document describing the object of the application in such a way that
the invention can be carried out by a person skilled in the art.
3. A person submitting a provisional application cannot claim priority
of a prior application.
4. At the applicant’s request and before the expiry of the 12-month time
limit as of submission of the provisional application, a search shall
be conducted on the basis of the document mentioned in paragraph 2(e),
whenever this contains searchable technical material.
Article 62-B CONVERSION OF A PROVISIONAL PATENT APPLICATION
1. Before expiry of the 12-month time limit as of submission of the
provisional application, this application shall be converted into a
definitive patent application and accompanied by the elements set forth
in Articles 61 and 62, duly drafted in Portuguese.
2. If the claims in the definitive application are not based on the document
submitted by the applicant under paragraph 2(e) of the previous article,
the priority of the application shall count from the date of submission
of said claims and not that of the provisional application.
3. After conversion into a definitive patent application, an examination
of the form and limitations of the object or patent shall be conducted,
as set forth in Article 65.
4. The publication referred to in Article 66 shall be carried out 18 months
after the date of submission of the provisional application, followed
by the terms of the procedure set forth in Article 68 et seq.
5. Whenever the conversion mentioned in paragraph 1 occurs, the duration
of the patent set forth in Article 99 shall count from the date of submission
of the provisional application.
6. If paragraph 1 is not respected, the provisional application shall
be deemed to have been withdrawn.
7. Applicants may be reminded of the end of the time limit mentioned in
paragraph 1 for information purposes only.
8. Failure to give the reminder mentioned in the previous paragraph shall
not constitute justification for not respecting the time limit.
Article 63 BIOTECHNOLOGICAL INVENTIONS
1. If an invention concerns biological material not accessible to the
public and cannot be described in the patent application so that a person
skilled in the art could carry it out, or entails the use of a material
of this type, the description shall only be considered sufficient for
the purpose of obtaining a patent, if:
a) The biological material has been deposited up to the date of submission
of the patent application at a recognized depositary institution, such
as international depositary institutions that have acquired this status
under the Budapest Treaty on the International Recognition of the Deposit
of Microorganisms for the Purposes of Patent Procedure of 28 April 1977;
b) The application as filed gives such relevant information as is available
to the applicant on the characteristics of the biological material
deposited;
c) The depositary institution and the accession number of the deposited
biological material are stated in the application.
2. Access to the deposited biological material must be ensured by submission
of a sample:
a) By the first publication of the patent application, solely to persons
who are so entitled under national law;
b) Between the first publication of the patent application and the grant
of the patent, to any person so requesting or, at the request of the depositor,
solely to an independent expert;
c) After the grant of the patent, and even in the event of cessation of
the patent due to invalidity or expiry, to anyone requesting it.
3. The material will only be handed over if the person requesting it
undertakes, for the duration of the patent:
a) Not to allow access by third parties to any sample of the deposited
biological material or a material derived from it;
b) Not to use any sample of the deposited biological material or of a
material derived from it, except for experimental purposes, unless the
applicant or patent holder expressly waives this undertaking.
4. If the patent application is refused or withdrawn, access to the deposited
material may, at the depositor’s request, be confined to an independent
expert for 20 years as of the date of submission of the patent application,
in which case paragraph 3 applies.
5. The requests from the depositor referred to in paragraph 2(b) and 4
may only be submitted up to the date on which the technical preparations
for publication of the patent application are considered complete.
6. If biological material deposited as set forth in the previous paragraphs
ceases to be available at the recognized depositary institution, a new
deposit of the material is allowed under the conditions of the Budapest
Treaty.
7. Any new deposit shall be accompanied by a statement signed by the depositor
certifying that the biological material in the new deposit is identical
to that originally deposited.
Article 64 TIME LIMIT FOR SUBMITTING DESCRIPTION AND DRAWINGS (Revoked.)
Article 65 EXAMINATION OF FORM AND LIMITATIONS
1. After a patent application has been submitted to the National Industrial
Property Institute, an examination of the form and limitations of the
object or patent shall be performed within one month to check that it
meets the requirements of Articles 52, 53 and 61 to 63.
2. If the National Industrial Property Institute finds that the application
contains formal irregularities or that there are limitations regarding
the object or patent, the applicant shall be given two months to correct
them.
3. If he does not do so within the specified time, the application shall
be refused and the decision shall be published in the Industrial Property
Bulletin, in which case the publication set forth in Article 66 will not
be made.
Article 65-A SEARCH REPORT
1. After the examination set forth in the previous article, there shall
47
be a search of the state of the art based on all the elements in the case
file in order to assess whether the novelty and inventive step requirements
have been met.
2. The search report, which is not binding, shall be sent to the applicant
immediately.
Article 66 PUBLICATION OF THE APPLICATION
1. If the application is in order or has been regularized under Article
65(2), it shall be published in the Industrial Property Bulletin with
a copy of the summary and the international patent classification.
2. The publication referred to in the previous paragraph shall be made
18 months after the date of submission of the patent application at the
National Industrial Property Institute or of the priority claim.
3. The publication may be brought forward at the applicant’s express
request.
4. After publication, anyone may request a copy of the elements in the
file.
5. Without prejudice to the previous articles, any claims or expressions
violating Article 61(2) shall be ex officio deleted in the patent and
in any publications resulting from the application.
Article 67 OPPOSITION (Revoked.)
Article 68 EXAMINATION OF INVENTION
1. The National Industrial Property Institute shall promote the examination
of an invention, considering all elements in the file.
2. If no opposition has been filed within the time limit the examination
report shall be drafted within one month.
3. If an opposition has been filed, the report shall be drafted within
one month of the submission of the last part of the procedure referred
to in Article 17.
4. If the examination shows that the patent can be granted, the respective
notice shall be published in the Industrial Property Bulletin.
5. If the examination shows that the patent cannot be granted, the report
and copies of all the elements mentioned in it shall be sent to the applicant,
who shall be given two months to respond to the remarks made.
6. If, after the applicant’s response, it is found that there are still
objections to the grant of the patent, the applicant shall be given one
month to clarify the points on which doubts persist.
7. If, as a result of the applicant’s response, it is found that the patent
can be granted, the respective notice shall be published in the Industrial
Property Bulletin.
8. If the response to notifications is not considered sufficient, a notice
of refusal or partial grant shall be published, in keeping with the
examination report.
9. If the applicant does not respond to the notification, the patent shall
be refused and the respective notice shall be published in the Industrial
Property Bulletin.
Article 69 PARTIAL GRANT
1. If it is merely a question of delimiting the material protected,
eliminating claims, drawings, phrases in the summary or description or
altering the title or heading of an invention, in keeping with that in
the notification and if the applicant does not make these alterations
voluntarily, the National Industrial Property Institute may make them
and publish a notice of partial grant of the patent in the Industrial
Property Bulletin.
2. The publication of the notice mentioned in the previous paragraph must
contain an indication of any alterations to the heading, claims, description
or summary.
3. A partial grant shall be made in such a way that the part refused does
not exceed the limits in the examination report.
Article 70 ALTERATIONS TO AN APPLICATION
1. If an application is altered during the examination phase, the grant
notice published in the Industrial Property Bulletin shall so indicate.
2. Claimants, if any, shall be informed of any alterations made to an
application during the examination phase for the purpose of appeals.
Article 71 UNITY OF INVENTION
1. It is not possible to apply for more than one patent or a single patent
for more than one invention in the same application.
2. A number of inventions that are interconnected in such a way as to
constitute a single general inventive concept are considered a single
invention.
Article 72 PUBLICATION OF FASCICLE
At the end of the time limits set forth in Article 27(1), the patent fascicle
may be published.
Article 73 REASONS FOR REFUSAL
1. In addition to the provisions of Article 24, a patent shall be refused
if:
a) The invention lacks novelty or an inventive step or has no industrial
application;
b) Its object falls under the provisions of Article 52 or 53;
c) The heading or title of the invention covers a different object or
there is a discrepancy between the description and drawings;
d) Its object is not described in such a way as to allow the invention
to be carried out by a person skilled in the art;
e) It is considered a design or model due to its description and claims;
f) There is a violation of Article 58 or 59;
g) It concerns an invention for which a European patent valid in Portugal
has been granted to the same inventor or with his consent.
2. In the case set forth in paragraph f) of the previous paragraph, instead
of a refusal of the patent, total or partial transfer to the interested
party may be granted, if he has so requested.
3. Recognition that the applicant intends to engage in unfair competition
or that this is possible irrespective of his intention is also a reason
for refusal.
Article 74 NOTIFICATION OF FINAL DECISION
Notification of the final decision shall be made immediately under Article
16(1), with an indication of the Industrial Property Bulletin in which
the notice was published.
SUBSECTION II European route
Article 75 SCOPE
1. The following provisions apply to European patent applications and
European patents effective in Portugal.
2. The provisions of this code apply to all matters that do not go against
the European Patent Convention of 5 October 1973.
Article 76 SUBMISSION OF EUROPEAN PATENT APPLICATIONS
1. European patent applications shall be submitted to the National
Industrial Property Institute or European Patent Office.
2. If an applicant for a European patent is resident or has its place
of business in Portugal, the application shall be filed at the National
Industrial Property Institute on pain of not being effective in Portugal,
unless it claims priority of a prior application filed in Portugal.
3. (Revoked.)
Article 77 LANGUAGES IN WHICH EUROPEAN PATENT APPLICATIONS MAY BE DRAFTED
1. European patent applications filed in Portugal may be drafted in any
of the languages provided for in the European Patent Convention.
2. If a European patent application is filed in a language other than
Portuguese it shall be accompanied by a Portuguese translation of the
description, claims and summary and a copy of the drawings, even if they
contain no expressions to be translated, unless the European patent
application claims priority of a prior application filed in Portugal.
3. The translation mentioned in the previous paragraph shall be submitted
to the National Industrial Property Institute within one month of the
date of the European patent application filed in Portugal.
Article 78 RIGHTS GRANTED BY PUBLISHED EUROPEAN PATENT APPLICATIONS
1. After European patent applications have been published under the terms
of the European Patent Convention, they shall enjoy provisional protection
equivalent to that afforded to published national patent applications
as of the date on which a Portuguese translation of the claims, accompanied
by a copy of the drawings, is available to the public at the National
Industrial Property Institute.
2. The National Industrial Property Institute shall publish a notice in
the Industrial Property Bulletin with the indications necessary to identify
the European patent application.
3. As of the date of publication of the notice referred to in the previous
paragraph, anyone may have access to the translated text and obtain copies
thereof.
Article 79 TRANSLATION OF EUROPEAN PATENTS
1. Whenever the European Patent Office grants a patent to be valid in
Portugal, the patentee shall submit to the National Industrial Property
Institute a Portuguese translation of the description, claims and summary,
together with a copy of the patent drawings and, if applicable, of any
alterations made during the opposition phase, on pain of the patent not
being effective in Portugal.
2. The translation of the European patent shall be accompanied by a copy
of the drawings, even if they contain no expressions to be translated.
3. The provisions of the previous paragraphs shall apply whenever the
European Patent office limits a European patent at the applicant’s request.
4. In the cases set forth in paragraphs 1 and 2 and for the purposes of
Articles 73 and 88, the patentee shall also mention whether the invention
to which the European patent refers has been patented or is the object
of a patent application already filed in Portugal, indicating its number,
date of application and any other relevant remarks.
Article 80 TIME LIMIT FOR SUBMISSION OF TRANSLATION OF EUROPEAN PATENT
1. The Portuguese translation of the description, claims and summary and
a copy of the drawings of the European patent shall be submitted to the
National Industrial Property Institute within three months of the date
of publication in the European Patent Bulletin of the grant notice or,
if applicable, of the date of the notice on an opposition or limitation
of the European patent.
2. The documents mentioned in the previous paragraph shall be submitted
jointly and accompanied by the fees payable.
3. If the applicant has not met all the requirements set forth in paragraph
1 within the time indicated he may do so within one month of its end,
against payment of a surcharge calculated with reference to the national
patent application fee.
Article 81 RESPONSIBILITY FOR TRANSLATIONS
If an applicant for or holder of a European patent does not have a domicile
or registered office in Portugal, the translations must be performed under
the responsibility of an official industrial property agent or a
representative accredited by the National Industrial Property Institute.
Article 82 PUBLICATION OF NOTICE REGARDING TRANSLATION
1. The National Industrial Property Institute shall publish in the National
Patent Bulletin a notice regarding the translations referred to in Article
79 containing the indications necessary to identify the European patent
and any limitations.
2. The notice shall only be published after payment of the corresponding
fee.
Article 83 ENTRY IN THE PATENT REGISTER
1. After the grant of a European patent has been published in the European
Patent Bulletin, the National Industrial Property Institute shall enter
it in its patent register with the particulars mentioned in the European
Patent Register.
2. The translations mentioned in Article 79 shall also be entered in the
National Industrial Property Institute patent register on date of receipt
or, if these translations have not been sent, the particulars in the European
Patent Register regarding the opposition process and the particulars set
forth for Portuguese patents.
3. Entry in the European Patent Register of acts transferring or altering
rights concerning a European patent application or a European patent renders
them opposable to third parties.
4. A patent granted under the European system may be limited or revoked
at the patentee’s request in the cases provided for in the European Patent
Convention, and this fact shall be entered in the National Industrial
Property Institute patent register.
5. A notice of the acts set forth in the previous paragraph shall be published
in the European Patent Bulletin after payment of the corresponding fee.
Article 84 AUTHENTIC TEXT OF THE EUROPEAN PATENT APPLICATION
If a Portuguese translation has been submitted under the previous articles,
this translation shall be considered authentic if, in the translated text,
the application or European patent grants less protection than that granted
by the same application or patent in the language used in the file.
Article 85 REVISION OF TRANSLATION
1. An applicant for or holder of a European patent may at any time revise
the translation, which shall only come into effect if it is accessible
to the public at the National Industrial Property Institute and the fee
has been paid.
2. Anyone who, in good faith, has begun using an invention or has made
effective, serious preparations to do so, without this use constituting
an infringement of the application or patent in the original translation,
may continue such use in the course of his business or for the needs thereof
without payment or the obligation to compensate.
Article 86 CONVERSION INTO NATIONAL PATENT APPLICATION
1. A European patent application can be converted into a national patent
application in the cases set forth in the European Patent Convention.
2. Whenever a European patent application has been withdrawn, deemed to
be withdrawn or refused, it may also be converted into a national patent
application.
3. The ability to convert mentioned in the previous paragraphs may also
apply in cases in which the European patent has been revoked.
4. A European patent application shall be deemed to be a national patent
application from the date of receipt of the conversion request by the
National Industrial Property Institute.
5. A national patent application shall be given the date of the European
patent application and, if applicable, its priority, unless the allocation
of this date is not allowed by the European Patent Convention.
6. A patent application shall be refused if the applicant does not pay
the fees payable for a national patent application or, if applicable,
has not submitted a Portuguese translation of the original European patent
application within two months of the date of receipt of the conversion
request.
Article 87 CONVERSION TO A PORTUGUESE UTILITY MODEL APPLICATION
1. (Revoked.)
2. (Revoked.)
3. The previous article applies, with the necessary adaptations, whenever
a request for conversion to a utility model application is requested.
Article 88 PROHIBITION OF DUAL PROTECTION
1. A national patent for an invention for which a European patent valid
in Portugal has been granted with the same date of application or priority
to the same inventor or with his consent shall expire when:
a) The time limit for opposing the European patent has expired with no
opposition having been filed;
b) The opposition process has ended and the European patent has been
maintained.
2. If a national patent is granted after any of the dates indicated in
subparagraphs a) and b) of the previous paragraph, this patent shall expire
and the corresponding notice shall be published in the Industrial Property
Bulletin.
3. The subsequent extinction or annulment of the European patent shall
not affect the provisions in the previous paragraphs.
Article 89 ANNUAL FEES
For all European patents effective in Portugal, the annual fees applicable
to national patents shall be paid to the National Industrial Property
Institute within the time limits set forth in this code.
SUBSECTION III patent cooperation treaty route
Article 90 DEFINITION AND SCOPE
1. An international application is an application submitted under the
Patent Cooperation Treaty signed in Washington on 19 June 1970.
2. The provisions of the cooperation treaty and the provisions of the
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office or designated or elected administration.
3. The provisions of this code shall apply to all matters that do not
go against the cooperation treaty.
Article 91 SUBMISSION OF INTERNATIONAL APPLICATIONS
1. International applications by natural or legal persons with residence
or registered office in Portugal shall be submitted to the National
Industrial Property Institute, European Patent Office or World
Intellectual Property Organization.
2. Whenever no priority of a prior application filed in Portugal is claimed,
an international application shall be submitted to the National Industrial
Property Institute, on pain of not being effective in Portugal.
3. (Revoked.)
4. In the conditions set forth in paragraph 1, the National Industrial
Property Institute shall act as receiving office under the cooperation
treaty.
5. Any international application submitted to the National Industrial
Property Institute acting as receiving office is subject to payment of
the fees set forth in the cooperation treaty plus a transmittal fee.
6. The payment of the transmittal fee shall be made within one month of
the date of receipt of the international application.
7. International applications submitted to the National Industrial
Property Institute acting as receiving office may be written in Portuguese,
French, English or German.
8. Persons submitting international applications in Portuguese shall
submit to the office a translation of the international application in
one of the languages indicated in the previous paragraph within one month
of the date of receipt of the international application by the receiving
office.
9. If the applicant does not satisfy the requirements set forth in the
previous paragraph within the time limit set forth therein, he may do
so under the terms of the cooperation treaty for international applications
by paying to the receiving office the surcharge set forth in the implementing
regulations of the cooperation treaty.
10. International applications shall be accompanied by a Portuguese
translation of the description, claims, summary and a copy of the drawings,
even if they have no expressions to be translated, unless the international
application claims priority of a prior application filed in Portugal for
the same invention.
Article 92 DESIGNATED OR ELECTED OFFICE
The National Industrial Property Institute shall act as a designated and
elected office under the cooperation treaty for international applications
aimed at protecting an invention in Portugal, whenever they do not have
the effect of a European Patent application.
Article 93 EFFECTS OF INTERNATIONAL APPLICATIONS
International applications for which the National Industrial Property
Institute acts as designated and elected office under the previous article
shall have the same effect in Portugal as that of a Portuguese patent
application filed on the same date.
Article 94 TIME LIMIT FOR SUBMISSION OF A TRANSLATION OF AN INTERNATIONAL
APPLICATION
1. Whenever an applicant wishes a procedure concerning an international
application to be pursued in Portugal, he shall submit to the National
Industrial Property Institute a Portuguese translation of all the elements
of the international application within the time limit established in
the cooperation treaty, and at the same time pay the fee corresponding
to the national application.
2. (Revoked.)
3. If an applicant does not fulfil all the requirements set forth in paragraph
1 within the time limit established therein, he may do so within one month
of its end on payment of a surcharge calculated with reference to the
national patent application fee.
Article 95 RIGHTS CONFERRED BY INTERNATIONAL APPLICATIONS ON PUBLICATION
1. After publication under the cooperation treaty, international
applications shall enjoy provisional protection in Portugal equivalent
to that conferred to national patent applications published after the
date on which a Portuguese translation of the claims accompanied by a
copy of the drawings, even if they contain no expressions to be translated,
is made available at the National Industrial Property Institute.
2. The National Industrial Property Institute shall publish a notice with
the particulars necessary to identify the international application in
the Industrial Property Bulletin.
3. As of the date of publication of the notice, anyone may have access
to the translation and obtain reproductions thereof.
Article 96 INTERNATIONAL APPLICATION CONTAINING INDEPENDENT INVENTIONS
1. If a part of an international application has not been the subject
of an international search or preliminary international examination due
to the fact that the application contains independent inventions and the
applicant has not paid the additional fee set forth in the cooperation
treaty within the time limit, the National Industrial Property Institute
shall re-examine the grounds for the decision not to perform the search
or examination of the application.
2. If the National Industrial Property Institute concludes that the decision
was not justified, the corresponding provisions of this code shall apply
to said application.
3. If the National Industrial Property Institute deems that the decision
is justified, the part of the application that was not the subject of
a search or examination shall be considered null and void, unless the
applicant requests the division of the application within two months of
notification, under the terms of this code for divided applications.
4. The corresponding fees shall be owed for national patent applications
as set forth in this code for each divided application.
SECTION III Effects of patent
Article 97 EXTENT OF PROTECTION
1. The extent of the protection conferred by a patent shall be determined
by the content of the claims and the description and drawings shall serve
to interpret them.
2. If a patent concerns a process, the rights conferred by it shall cover
the products obtained directly by the patented process.
3. The protection conferred by a patent on a biological material possessing
specific characteristics as a result of the invention shall extend to
any biological material derived from that biological material through
propagation or multiplication in an identical or divergent form and
possessing those same characteristics.
4. The protection conferred by a patent on a process that enables a biological
material to be produced possessing specific characteristics as a result
of the invention shall extend to biological material directly obtained
through that process and to any other biological material derived from
the directly obtained biological material through propagation or
multiplication in an identical or divergent form and possessing those
same characteristics.
5. The protection conferred by a patent of a product that contains or
consists of genetic information shall extend to any material in which
the product is incorporated, contained and performs its function, save
as provided for in Article 53(3)(a).
6. By way of derogation of paragraphs 3 to 5 of this article:
a) The sale or other form of commercialisation of plant propagating material
to a farmer by the holder of the patent, or with his consent for agricultural
use, implies authorisation for the farmer to use the product of his harvest
for propagation or multiplication by him on his own farm;
b) The sale or any other form of commercialisation of breeding stock or
other animal reproductive material to a farmer by the holder of the patent
or with his consent implies authorisation for the farmer to use the protected
livestock for an agricultural purpose. This includes making the animal
or other animal reproductive material available for the purposes of pursuing
his agricultural activity but not sale within the framework or for the
purpose of a commercial reproduction activity.
Article 98 REVERSAL OF BURDEN OF PROOF
If a patent is for a manufacturing process of a new product, the same
product manufactured by a third party shall be considered to have been
manufactured by the patented process unless proven otherwise.
Article 99 DURATION
The duration of a patent is 20 years from date of application.
Article 100 INDICATION OF PATENT
While a patent is in effect, its holder may use the words “patented” “patent
no.” or “Pat no.” on the product.
Article 101 RIGHTS CONFERRED BY PATENT
1. A patent confers the exclusive right to exploit the invention anywhere
in Portuguese territory.
2. A patent also confers upon its holder the right to prevent others from
manufacturing, offering, storing, commercializing or using a patented
product or importing or possessing it for any of the aforementioned purposes
without his consent.
3. A patentee may oppose all acts constituting a violation of his patent,
even if they merge with another patent with a later priority date, with
no need to impugn titles or request annulment of patents with which this
right merges.
4. The rights conferred by a patent shall not exceed the scope defined
by the claims.
5. A patentee may ask the National Industrial Property Institute, on payment
of a fee, to limit the scope of protection of the invention by altering
the claims.
6. If the examination shows that the request for limitation can be granted,
the National Industrial Property Institute shall promote the publication
of a notice of the alteration of the claims, otherwise the request shall
be denied and the decision communicated to the requester.
Article 102 LIMITATION OF RIGHTS CONFERRED BY A PATENT
The rights conferred by a patent do not extend to:
a) Acts performed in private and not for commercial purposes;
b) The preparation of medicinal products performed at the time and for
individual cases on the basis of a doctor’s prescription at pharmaceutical
laboratories or acts relating to the medicinal products prepared in this
way;
c) Acts performed exclusively for trial or experimental purposes, including
experiments for the preparation of the administrative processes required
for the approval of products by the competent official bodies, though
industrial or commercial exploitation of these products may not commence
before expiry of the patent protecting them;
d) Use on board ships from other countries belonging to the Union or WTO
of a patented invention in the hull, machinery, rigging, gear or other
accessories of the ship, if they temporarily or accidentally enter the
waters of the country, provided that said invention is used exclusively
to serve the ship’s needs;
e) The use of a patented invention in the construction or operation of
aircraft or land vehicles of other countries belonging to the Union or
WTO or their accessories, if they temporarily or accidentally enter national
territory;
f) The acts set forth in Article 27 of the Convention of 7 December 1944
concerning international civil aviation if they have regard to aircraft
from another state to which the provisions of said article apply.
Article 103 EXHAUSTION OF THE RIGHTS
1. The rights conferred by a patent do not allow its holder to forbid
acts related to the products protected by it after their sale by the patentee
or with his consent, in the European economic area.
2. The protection referred to in Article 97(3) to 97(5) does not cover
biological material obtained by propagation or multiplication of a
biological material sold by the patentee or with his consent, in the European
economic area, if the propagation or multiplication is the necessary result
of the use for which the biological material was placed on the market,
provided that the material obtained is not then used for further propagation
or multiplication.
Article 104 NON-OPPOSABILITY
1. The rights conferred by a patent are not opposable if it is claimed
against someone who, in Portuguese territory before the date of the
application or of priority, in good faith, has learned of the invention
by his own means and used it or made effective, serious preparations to
use it.
2. The previous paragraph does not apply if the knowledge is the result
of unlawful or immoral acts against the patentee.
3. The burden of proof lies with the person invoking the situations set
forth in paragraph 1.
4. Prior use or preparations therefor based on the information referred
to in Article 57(1)(a) does not prejudice good faith.
5. In the cases set forth in paragraph 1, the beneficiary has the right
to pursue or commence use of the invention, within the limits of his prior
knowledge, for his own business purposes, but may only transfer it in
conjunction with the business establishment in which use is made.
SECTION IV Conditions of use
Article 105 LOSS AND EXPROPRIATION OF PATENT
1. Anyone who is liable for obligations undertaken in relation to third
parties or whose patent is expropriated in the public interest may be
deprived of a patent under the law.
2. Any patent may be expropriated in the public interest on payment of
fair compensation, if the need for dissemination of the invention or use
by public bodies so requires.
3. The Expropriation Code is applicable, with the necessary adaptations.
Article 106 OBLIGATION TO EXPLOIT
1. The patentee is obliged to exploit a patented invention directly or
through a person authorised by him and to market the results obtained
in order to fulfil the needs of the national market.
2. Exploitation shall begin within four years of the date of the patent
application or three years of the grant date, whichever is greater.
3. It is possible to enjoy patent rights with no discrimination as to
place of invention, the technological field or the fact that the products
are imported from any country belonging to the European Union or WTO or
produced locally.
Article 107 COMPULSORY LICENCES
1. Compulsory licences may be granted for a certain patent, in any of
the following cases:
a) Lack or insufficient exploitation of a patented invention;
b) Dependency between patents;
c) Reasons of public interest.
2. Compulsory licences shall be non-exclusive and may only be transferred
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with the part of the company or establishment that exploits them.
3. Compulsory licences may only be granted if the potential licensee has
made efforts to obtain a contractual licence from the patentee on acceptable
commercial conditions and said efforts have not been successful within
a reasonable period of time.
4. A compulsory licence may be revoked without prejudice to the appropriate
protection of the licensees’ legitimate interests if and when the
circumstances that gave rise to it cease to exist or are not likely to
occur again. The competent authority may re-examine the continuation of
said circumstances on duly justified request.
5. If a patent concerns semiconductor technology, compulsory licences
may only granted for a noncommercial, public purpose.
6. The patentee shall receive appropriate payment in each concrete case
on the basis of the economic value of the licence.
7. A decision granting or denying payment is subject to judicial or arbitral
appeal under Articles 48 to 50.
Article 108 LICENCE DUE TO FAILURE TO EXPLOIT INVENTION
1. After the time limits referred to in Article 106(2) have expired, a
patentee who, without a good reason or legal basis, does not exploit an
invention, directly or under licence, or does not do so in such a way
as to meet national needs, may be obliged to grant a licence for its
exploitation.
2. A patentee may also be obliged to grant an exploitation licence for
an invention if he ceases to exploit it for three consecutive years without
a good reason or legal basis.
3. Objective technical or legal reasons beyond the patentee’s control
and irrespective of his situation making the exploitation of the invention
impossible or insufficient are considered good reason, but not economic
or financial difficulties.
4. For as long as a compulsory licence remains in force, the patentee
may not be obliged to grant another before the previous one is cancelled.
5. A compulsory licence may be cancelled if the licensee does not exploit
the invention in such a way as to meet national needs.
Article 109 DEPENDENT LICENCES
1. If it is not possible to exploit a patented invention, without prejudice
to the rights conferred by a previous patent, and the two inventions are
used for different industrial purposes, a licence may only be granted
if the first invention is essential to the exploitation of the second,
and only in the part necessary for said exploitation, and the holder of
the first patent is entitled to fair compensation.
2. If inventions protected by dependent patents serve the same industrial
purpose and a compulsory licence is to be granted, the previous patentee
may also demand a compulsory licence for the later patent.
3. If an invention concerns a process for preparing a chemical,
pharmaceutical or food product protected by a current patent, and whenever
this process patent represents notable technical progress in relation
to the previous patent, both the holder of the process patent and the
holder of the product patent are entitled to demand a compulsory licence
for the other holder’s patent.
4. If the obtainer of a plant variety cannot obtain or exploit a plant
securing right without infringing a prior patent, he may request a
compulsory licence for nonexclusive exploitation of the invention
protected by the patent, provided that this licence is necessary for the
exploitation of the same plant variety, on payment of appropriate
remuneration.
5. Whenever a licence of the type provided for in the previous paragraph
is granted, the patentee is entitled to a reciprocal licence on reasonable
terms to use the protected variety.
6. If the holder of a patent for a biotechnological invention is unable
to exploit it without infringing a previous plant variety securing right,
he may request a compulsory licence for non-exclusive exploitation of
the variety protected by the securing right on payment of an appropriate
sum.
7. Whenever a licence of the type provided for in the previous paragraph
is granted, the holder of the securing right is entitled to a reciprocal
licence on reasonable terms to use the protected invention.
8. Applicants for the licences referred to in paragraphs 4 and 6 must
prove that:
a) They approached the patentee or plant securing right holder in vain
to obtain a contractual licence;
b) The plant variety or invention represents important technical progress
of considerable economic interest in relation to the invention claimed
in the patent or to the plant variety being protected.
9. This article also applies whenever one of the inventions is protected
by a patent and the other by a utility model.
Article 110 PUBLIC INTEREST
1. A patentee may, in the public interest, be obliged to grant a licence
for the exploitation of his invention.
2. There are considered to be reasons of public interest if the start,
increase or generalisation of the exploitation of the invention, or an
improvement in the conditions of its exploitation, is of vital importance
to public health or national defence.
3. There are also considered to be reasons of public interest if failure
to exploit or insufficient quality or quantity of exploitation is highly
detrimental to the country’s economic or technological development.
4. The government shall be responsible for granting a licence in the public
interest.
Article 111 REQUESTS FOR COMPULSORY LICENCES
1. Compulsory licences shall be requested from the National Industrial
Property Institute. Applicants shall submit proof to justify their request.
2. Requests for compulsory licences shall be examined in the order in
which they are submitted to the National Industrial Property Institute.
3. On receiving a request for a compulsory licence, the National Industrial
Property Institute shall give the patentee two months in which to say
anything he sees fit and to submit proof.
4. The National Industrial Property Institute shall consider the parties’
arguments and the guarantees of exploitation of the invention offered
by the applicant for the compulsory licence and decide, within two months,
whether or not it should be granted.
5. If it decides in favour, it shall give both parties one month to appoint
an expert who, together with the expert appointed by the National Industrial
Property Institute, shall agree, within two months, on the conditions
of the compulsory licence and the compensation to be paid to the patentee.
Article 112 NOTIFICATION OF AND APPEAL AGAINST GRANT OR REFUSAL OF LICENCE
1. The National Industrial Property Institute shall inform both parties
of the grant or refusal of a licence and its exploitation conditions.
2. Appeals may be lodged against the decision of the National Industrial
Property Institute to grant or refuse the licence, or only the conditions
in which it has been granted, to the competent court under the terms of
articles 39 et seq., within three months of the date of the notification
referred to in the previous paragraph.
3. A decision to grant shall only be effective after its confirmation
and annotation at the National Industrial Property Institute, where the
appropriate fees shall be paid as for an ordinary licence.
4. An extract of the registration referred to in the previous paragraph
shall be published in the Industrial Property Bulletin.
SECTION V Invalidity of a patent
Article 113 NULLITY
In addition to the provisions of Article 33, patents shall be null and
void in the following cases:
a) If its object does not meet the requirements of novelty, inventive
step and industrial application;
b) If its object cannot be protected under Articles 51, 52 and 53;
c) If it is recognised that the title or heading given to the invention
covers a different object;
d) If its object has not been described in such a way that anyone skilled
in the art can carry it out.
Article 114 DECLARATION OF NULLITY OR PARTIAL ANNULMENT
1. One or more claims may be declared null and void or annulled, but partial
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nullity may not be declared nor may a claim be partially annulled.
2. In court proceedings, a patentee may limit the scope of protection
of an invention by altering the claims.
3. If one or more claims are declared null and void or annulled, the patent
shall remain in effect for the remaining claims, whenever there is material
for an independent patent.
SECTION VI Supplementary protection certificate for medicinal and
phytopharmaceutical products
Article 115 APPLICATION FOR CERTIFICATE
1. Applications for supplementary protection certificates for medicinal
and phytopharmaceutical products submitted to the National Industrial
Property Institute shall include an application form in Portuguese
indicating or containing:
a) The applicant’s name or company name, nationality, address or place
of business, tax number for residents in Portugal and email address, if
any;
b) The patent number and heading or title of the invention protected by
the patent;
c) The number and date of the first market authorization in Portugal and,
if this is not the first marketing authorisation in the European economic
area, the number and date of that authorisation;
d) A reference to simultaneous submission of a request to extend the validity
of the supplementary protection certificate, if applicable;
e) The signature or electronic ID of the applicant or his representative.
2. The application shall be accompanied by a copy of the first market
authorisation for Portugal identifying the product and including the number
and date of the authorisation and a summary of product characteristics.
3. The denomination of the authorised product and the law under which
it was authorised must be indicated and a copy of the publication of said
authorisation in the official bulletin shall be attached, if the
authorisation referred to in the previous paragraph is not the first
marketing authorisation for the product in the European economic area
as a medicinal or phytopharmaceutical product.
Article 115-A APPLICATION FOR AN EXTENSION OF THE DURATION
1. A request for an extension of a supplementary protection certificate
may be submitted in the case of medicinal products for paediatric use.
2. A request for an extension may be submitted to the National Industrial
Property Institute at the time of submission of a request for a supplementary
protection certificate, while it is pending or, if a certificate has already
been granted, up to two years before it expires.
3. For five years after the entry into force of Regulation (EC) 1901/2006
of the European Parliament and of the Council of 12 December, requests
for extension of the supplementary protection certificates already granted
may be submitted up to six months before the expiry of said certificate.
4. If a request for an extension is submitted at the time of submission
of a request for a supplementary protection certificate, the request set
forth in the previous paragraph shall be accompanied by a copy of the
certification of compliance with an approved, completed paediatric
research plan and, in the case of the procedures set forth in Decree-Law
176/2006 of 30 August, proof of marketing authorisations for all European
Union Member States.
5. If a request for a supplementary protection certificate is pending,
the request for an extension shall be submitted in a form that indicates
not only the particulars set forth in the previous paragraph but also
includes a reference to the request for a certificate already submitted.
6. If a request for an extension concerns a supplementary protection
certificate already granted, the request must include not only the
particulars set forth in paragraph 4 but also a reference to this
certificate.
Article 116 EXAMINATION AND PUBLICATION
1. After a request has been submitted to the National Industrial Property
Institute, the examination shall be performed to check whether it was
submitted within the time limit and meets the conditions set forth in
Article 115 of Regulation (EEC) 1768/92 of the Council of 18 June and
Regulation (EC) 1610/96 of the European Parliament and of the Council
of 23 July regarding the creation of supplementary protection certificates
for medicinal and phytopharmaceutical products.
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2. If a request for a certificate and the product to which it refers fulfil
the conditions set forth in the previous paragraph, the National Industrial
Property Institute shall grant the certificate and publish the request
and decision granting it in the Industrial Property Bulletin.
3. If a request for a certificate does not fulfil the conditions set forth
in the previous paragraph, the National Industrial Property Institute
shall give two months for the correction of the irregularities found.
4. If the National Industrial Property Institute finds, from the applicant’s
reply, that the request for a certificate fulfils the required conditions,
it shall publish the request for a certificate and the notice of its grant
in the Industrial Property Bulletin.
5. A request shall be denied if the applicant does not comply with the
notification, and the request and a notice of its refusal shall be published
in the Industrial Property Bulletin.
6. Without prejudice to paragraph 3, a certificate shall be refused if
the request or the product to which it refers does not fulfil the conditions
in the Regulation or those established in this code. The request and a
notice of its refusal shall be published in the Industrial Property
Bulletin.
7. The publication shall include at least the following indications:
a) Name and address of applicant;
b) Patent number;
c) Heading or title of invention;
d) Number and date of market authorisation in Portugal and the
identification of the product authorised;
e) Number and date of the first market authorisation in the European economic
area, if applicable;
f) Notice of grant and period of validity of the certificate or notice
of refusal, as the case may be.
8. This article, with the necessary adaptations, applies to applications
for an extension of the duration of supplementary protection certificates.
SUBCHAPTER II Utility models
SECTION I General provisions
Article 117 OBJECT
1. New inventions involving an inventive step can be protected as utility
models, if they have an industrial application.
2. The aim of utility models is to protect inventions by means of a simpler,
speedier administrative procedure than that for patents.
3. An invention that abides by the conditions established in paragraph
1 can be protected by a utility model or patent, as the applicant chooses.
4. The same invention may be simultaneously or successively the subject
of a patent and utility model application.
5. The successive submission of applications referred to in the previous
paragraph may only be allowed within one year of the date of submission
of the first application.
6. In the cases set forth in paragraph 4, a utility model shall expire
after grant of a patent for the same invention.
Article 118 LIMITATIONS AS TO OBJECT
Article 52 is applicable to utility models.
Article 119 LIMITATIONS AS TO UTILITY MODEL
The following cannot be the object of a utility model:
a) Inventions whose commercial exploitation is against the law or contrary
to public policy, public health or morality and their exploitation may
not be considered as such due to the simple fact that it is forbidden
by law or regulations;
b) Inventions involving biological material;
c) Inventions involving chemical or pharmaceutical substances or
processes.
Article 120 GRANT REQUIREMENTS
1. An invention shall be considered new if it does not form part of the
state of the art.
2. An invention shall be considered as involving an inventive step, if
it meets one of the following requirements:
a) If it is not obvious to a person skilled in the art;
b) If it offers a practical or technical advantage for the manufacture
or use of the product or process in question.
3. An invention shall be considered as susceptible of industrial application
if it can be made or used in any kind of industry or in agriculture.
4. The provisions of Articles 56 and 57 apply to utility models with the
necessary adaptations.
Article 121 GENERAL RULE ON THE RIGHT TO A UTILITY MODEL
Article 58 applies to utility models.
Article 122 SPECIAL RULES ON OWNERSHIP OF A UTILITY MODEL
Article 59 applies to utility models.
Article 123 INVENTOR’S RIGHTS
Article 60 applies to utility models.
SECTION II Utility model process
SUBSECTION I National route
Article 124 FORM OF APPLICATION
1. Utility model applications shall be submitted on a form in Portuguese
that indicates or contains:
a) The applicant’s name, nationality, address or place of business, tax
number if resident in Portugal and email address, if any;
b) A name or title summarising the invention;
c) The name and country of residence of the inventor;
d) The country in which the first application was filed, the date and
number of this application, if the applicant wishes to claim a priority
right;
e) A mention that a patent has been requested for the same invention,
if applicable, under the terms of Article 51(5);
f) The signature or electronic ID of the applicant or his representative.
2. Fancy names for the invention shall not be the subject of claims.
3. For the purpose of Article 11(1), priority shall be granted to a utility
model application that, in addition to the details required in paragraph
1(a), first submits a document describing the object of the application
in such a way that a person skilled in the art may carry out the invention
or, in substitution, when priority of a prior application is claimed,
an indication of the number and date of the prior application and the
body to which it was submitted.
4. The document provided for in the previous paragraph may be submitted
in English and the applicant shall be ordered to submit a Portuguese
translation under Article 127.
Article 125 DOCUMENTS TO BE SUBMITTED
Article 62 applies to utility models
Article 126 TIME LIMIT FOR SUBMISSION OF THE DESCRIPTION AND DRAWINGS
(Revoked.)
Article 127 EXAMINATION OF FORM AND LIMITATIONS
1. After a utility model application has been submitted to the National
Industrial Property Institute, an examination of the form and limitations
of the object and utility model shall be performed within one month to
check that it meets the requirements in Articles 118, 119, 124 and 125.
2. If the National Industrial Property Institute finds that the application
contains formal irregularities or that there are limitations regarding
the object or utility model, the applicant shall be given two months to
correct them.
3. If he does not do so within the specified time, the application shall
be refused and the decision shall be published in the Industrial Property
Bulletin, in which case the publication set forth in Article 128 shall
not be made.
Article 127-A SEARCH REPORT
1. After the examination set forth in the previous article has been performed,
and whenever the examination set forth in Article 132 is requested, there
shall be a search of the state of the art based on all the elements in
the case file in order to assess whether the requirements of novelty and
inventive step have been met.
2. The search report, which is not binding, shall be sent to the applicant
immediately.
Article 128 PUBLICATION OF THE APPLICATION
1. If the application is in order or has been regularized under Article
127(2), the utility model application shall be published in the Industrial
Property Bulletin with a copy of the summary and international patent
classification.
2. The publication referred to in the previous paragraph shall be made
up to six months after the date of application, though it may be brought
forward at the applicant’s express request.
3. Publication may also be postponed at the applicant’s request for a
period of no more than 18 months as of the date of application for a utility
model or priority claim.
4. The postponement shall cease as of the time when an examination is
requested by third parties or the applicant himself.
5. After publication, anyone may request a copy of the elements in the
file.
6. Article 66(5) applies to utility models.
Article 129 OPPOSITION (Revoked.)
Article 130 PROVISIONAL GRANT
1. If no examination has been requested and there is no opposition, the
utility model shall be granted provisionally and the applicant notified
of the decision.
2. The provisional grant document shall only be given to the applicant
on request.
3. The validity of a provisional utility model shall cease as soon as
an examination of the invention is requested.
Article 131 REQUEST FOR EXAMINATION
1. An examination may be requested in the application phase or while the
provisional utility model is still valid.
2. The examination fee shall be paid by the person requesting it within
one month of the date of request.
3. If the holder of a provisional utility model wishes to bring lawsuits
or request arbitration to defend the rights that it confers, he must ask
the National Industrial Property Institute to conduct the examination
referred to in the following article. Article 5 applies.
Article 132 EXAMINATION OF INVENTION
1. The National Industrial Property Institute shall promote the examination
of the invention at the request of the applicant or any interested party.
2. If an examination is requested before the end of the time limit for
opposition and no claims are submitted, the examination report shall be
drafted within one month.
3. If there is opposition, the examination shall be carried out within
one month of the submission of the last part of the procedure referred
to in Article 17.
4. If an examination is requested after a provisional utility model has
been granted, the one-month time limit mentioned in paragraph 2 shall
count from the date on which the examination is requested.
5. If the examination shows that the utility model can be granted, the
notice shall be published in the Industrial Property Bulletin.
6. If, however, it is concluded that it cannot be granted, the report
and copies of all the elements mentioned in it shall be sent to the applicant,
who shall be given two months to respond to the remarks made.
7. If, after the applicant’s response, it is found that there are still
objections to the grant of the utility model, the applicant shall be given
one month to clarify the points on which doubts persist.
8. If, as a result of the applicant’s response, it is found that the utility
model can be granted, a notice shall be published in the Industrial Property
Bulletin.
9. If the response to notifications is not considered sufficient, a notice
of refusal or partial grant shall be published, in keeping with the
examination report.
10. If the applicant does not respond to the notification, the utility
model shall be refused and a refusal notice shall be published in the
Industrial Property Bulletin.
Article 133 PARTIAL GRANT
Article 69 applies to utility models.
Article 134 ALTERATIONS TO AN APPLICATION
Article 70 applies to utility models.
Article 135 UNITY OF INVENTION
Article 71 applies to utility models.
Article 136 PUBLICATION OF FASCICLE
Article 72 applies to utility models.
Article 137 REASONS FOR REFUSAL
1. In addition to the provisions of Article 24, a utility model shall
be refused if:
a) The invention lacks novelty or an inventive step or has no industrial
application;
b) Its object falls under the provisions of Articles 118 or 119;
c) The heading or title of the invention covers a different object or
there is a discrepancy between the description and drawings;
d) Its object is not described in such a way as to allow the invention
to be carried out by a person skilled in the art;
e) It is considered a design or model due to its description and claims;
f) There is a violation of Article 58 or 59;
g) It concerns an invention for which a European patent valid in Portugal
has been granted to the same inventor or with his consent.
2. In the case set forth in subparagraph (f) of the previous paragraph,
instead of a refusal of the utility model, total or partial transfer to
the interested party may be granted, if he has so requested.
3. Recognition that the applicant intends to engage in unfair competition
or that this is possible irrespective of his intention is also a reason
for refusal.
4. The reason for refusal provided for in paragraph 1(g) is also grounds
for expiry of the utility model, in which case Article 88 shall apply,
with the necessary adaptations.
Article 138 NOTIFICATION OF FINAL DECISION
Article 74 applies to utility models.
SUBSECTION II Patent cooperation treaty route
Article 139 APPLICABLE PROVISIONS
Articles 90 to 96 apply to utility models, with the necessary adaptations.
SECTION III Effects of utility model
Article 140 EXTENT OF PROTECTION
1. The extent of the protection conferred by a utility model patent shall
be determined by the content of the claims, and the description and drawings
shall serve to interpret them.
2. If a utility model concerns a process, the rights conferred by it shall
cover the products obtained directly by the patented process.
Article 141 REVERSAL OF BURDEN OF PROOF
Article 98 applies to utility models.
Article 142 DURATION
1. The duration of a utility model shall be six years fromdate of application.
2. In the last six months of validity of a utility model, the holder may
request its extension for two years.
3. In the last six months of the period referred to in the previous paragraph,
the holder may submit a second and final request for an extension of
protection for another two years.
4. The duration of a utility model may not exceed 10 years as of the date
of submission of the respective application.
Article 143 INDICATION OF UTILITY MODEL
While a utility model is in effect, its holder may use the expression
“Utility model no.” and “UM no.” or, in the case provided for in Article
130, the expression “Provisional utility model no.” and “Provisional UM
no.”
Article 144 RIGHTS CONFERRED BY UTILITY MODEL
1. A utility model confers the exclusive right to exploit the invention
anywhere in Portuguese territory.
2. If a utility model concerns a product, it entitles its holder to forbid
others to manufacture, use, offer for sale, sell or import the product
for these purposes without his consent.
3. If a utility model concerns a process, it entitles its holder to forbid
others to use the process or use, offer for sale or sell or import for
these purposes the product directly obtained by this process.
4. The holder of a utility model may oppose all acts constituting a violation
of his invention, even if they merge with another utility model with a
later priority date, with no need to impugn titles or request annulment
of utility models with which this right merges.
5. The rights conferred by a utility model shall not exceed the scope
defined by the claims.
Article 145 LIMITATION OF RIGHTS CONFERRED BY UTILITY MODEL
1. The rights conferred by a utility model do not cover:
a) Acts performed in private and not for commercial purposes;
b) Experimental acts involving the protected object.
2. The provisions of Article 102(d), 102(e) and 102(f) apply to utility
models.
Article 146 EXHAUSTION OF THE RIGHTS
The rights conferred by a utility model do not allow its holder to forbid
acts related to the products protected by it, after its sale by the holder,
or with his consent, in the European economic area.
Article 147 NON-OPPOSABILITY
Article 104 applies to utility models.
SECTION IV Conditions of use
Article 148 LOSS AND EXPROPRIATION OF UTILITY MODEL
Article 105 applies to utility models.
Article 149 OBLIGATION TO EXPLOIT
Article 106 applies to utility models.
Article 150 COMPULSORY LICENCES
Articles 107 to 112 apply to utility models.
SECTION V Invalidity of utility model
Article 151 NULLITY
1. In addition to Article 33, a utility model shall be null and void in
the following cases:
a) If its object does not meet the requirements of novelty, inventive
step and industrial application;
b) If its object cannot be protected under Articles 117, 118 and 119;
c) If it is recognised that the title or heading given to the invention
covers a different object;
d) If its object has not been described in such a way that anyone skilled
in the art can carry it out.
2. Only utility models whose invention has been subject to an examination
may be declared null and void.
Article 152 DECLARATION OF NULLITY OR PARTIAL ANNULMENT
Article 114 applies to utility models.
CHAPTER II Topography of semiconductor products
SECTION I General provisions
Article 153 DEFINITION OF A SEMICONDUCTOR PRODUCT
A semiconductor product is the final or intermediate form of any product
meeting all the following criteria:
a) It consists of a body of material including a layer of semiconducting
material;
b) It has one or more layers composed of conducting, insulating or
semiconducting materials and they are arranged in accordance with a
predetermined three-dimensional pattern;
c) It is intended to perform an electronic function, exclusively or in
conjunction with other functions.
Article 154 DEFINITION OF TOPOGRAPHY OF SEMICONDUCTOR PRODUCT
The topography of a semiconductor product is a set of related fixed or
encoded images that represent the three dimensional layout of the layers
making up the product, in which each image shows the layout or part of
the layout of a surface of the same product in any stage of its manufacture.
Article 155 OBJECT OF LEGAL PROTECTION
1. Only topographies of semiconductor products that result from the
intellectual efforts of their creator and are not known in the semiconductor
industry may be protected.
2. Topographies consisting of elements known in the semiconductor industry
may also be protected, provided that the combination of these elements,
as a whole, fulfils the conditions in the previous paragraph.
3. Protection granted to topographies of semiconductor products applies
only to the topographies themselves and not to any concept, process, system,
technique or encoded information incorporated in them.
4. Any creator of a final or intermediate topography of a semiconductor
product enjoys the exclusive right to use this topography, provided that
he meets legal requirements, such as those regarding registration.
5. Registration may not, however, occur two years after the first commercial
exploitation, anywhere, of the topography or after the time limit of 15
years as of the date on which it was fixed or encoded for the first time,
if it has never been exploited.
Article 156 GENERAL RULE ON RIGHT TO REGISTER
Article 58 applies to topographies of semiconductor products.
Article 157 SPECIAL RULES ON ENTITLEMENT TO REGISTRATION
Article 59 applies to topographies of semiconductor products.
Article 158 CREATOR’S RIGHTS
Article 60 applies to topographies of semiconductor products.
Article 159 APPLICABLE RULES
The provisions on patents are applicable to topographies of semiconductor
products in as far as they do not go against the nature of this private
right.
SECTION II Registration process
Article 160 FORM OF APPLICATION
Articles 61, 62 and 65 to 72 apply to applications to register topographies
of semiconductor products, with the necessary adaptations.
Article 161 REASONS FOR REFUSAL
1. In addition to Article 24, registration of a topography of semiconductor
product shall be refused if:
a) The topography of the semiconductor product is not a topography in
the sense of Articles 153 and 154;
b) The topography of a semiconductor product does not meet the requirements
established in Article 155;
c) The heading or title given to the topography of a semiconductor product
concerns a different object or there is a discrepancy between the
description and drawings;
d) Its object is not described in such a way that any person skilled in
the art could carry out the topography of the semiconductor product;
e) There is an infringement of Article 58 or 59.
2. In the case provided for in subparagraph e) of the previous paragraph,
instead of refusing registration, total or partial transfer to the
interested party may be granted, if he has so requested.
3. Recognition that the applicant intends to engage in unfair competition
or that this is possible irrespective of his intention is also a reason
for refusal.
SECTION III Effects of registration
Article 162 DURATION
The duration of a registration is 10 years from the date of application
or the date on which the topography was first exploited in any location,
if earlier.
Article 163 INDICATION OF REGISTRATION
While the registration is in effect, its holder may use the upper-case
letter “T” with one of the following: T, “T”, [T], (see original document),
T* or T on semiconductor products manufactured through the use of protected
topographies.
Article 164 RIGHTS CONFERRED BY REGISTRATION
1. Registration of a topography entitles its holder to exclusive use
throughout Portuguese territory, producing, manufacturing, selling or
exploiting the topography or objects in which it is used, with the obligation
to do so effectively and in keeping with market needs.
2. Registration of a topography also entitles its holder to authorise
or forbid any of the following acts:
a) Reproduction of the protected topography;
b) Import, sale or distribution in any other form, for a commercial purpose,
of protected topography of a semiconductor product in which a protected
topography is incorporated, or of an article in which a semiconductor
product of this type is incorporated, only to the extent that it continues
to include a topography reproduced unlawfully.
Article 165 LIMITATION OF RIGHTS CONFERRED BY REGISTRATION
Rights conferred by registration of a topography do not cover:
a) Private reproduction of a topography for noncommercial purposes;
b) Reproduction for the purposes of analysis, assessment or teaching;
c) The creation of a different topography from the analysis or assessment
referred to in the previous paragraph, which may benefit from the protection
provided for in this code;
d) The performance of any of the acts referred to in paragraph 2 of the
previous article relating to a semiconductor product in which an unlawfully
reproduced topography is incorporated, or to any article in which a
semiconductor product of this type is incorporated, if the person who
performed or ordered these acts did not know and was not obliged to know,
on acquiring the semiconductor product or article in which the semiconductor
product was incorporated, that it incorporated an unlawfully reproduced
topography;
e) The performance, after the person referred to in the previous
subparagraph has received sufficient information that the topography has
been reproduced unlawfully, of any of the acts in question relating to
the products in his possession, or ordered before that time, shall be
subject to payment to the registration holder of a sum equivalent to
appropriate royalties as payable under a freely negotiated licence for
a topography of this type.
Article 166 EXHAUSTION OF THE RIGHTS
The rights conferred by registration of a topography do not allow its
holder to forbid acts concerning topographies or the semiconductor products
protected by it after their sale, by the holder or with his consent, in
the European economic area.
Article 167 NON-OPPOSABILITY
Article 104 applies to rights conferred by the registration of topographies
of semiconductor products.
SECTION IV Conditions of use
Article 168 LOSS AND EXPROPRIATION OF REGISTRATION
Article 105 applies to topographies of semiconductor products.
Article 169 COMPULSORY EXPLOITATION LICENCE
Articles 106 to 112 apply to topographies of semiconductor products in
cases in which the compulsory licences are for a public, non-commercial
purpose.
SECTION V Invalidity of registration
Article 170 NULLITY
In addition to the provisions of Article 33, a registration of a topography
of a semiconductor product shall be null and void in the following cases:
a) If its object does not fulfil the requirements set forth in Articles
153, 154 and 155;
b) If the title or heading of the topography is seen to cover a different
object;
c) If its object has not been described in such a way that it can be carried
out by a person skilled in the art.
Article 171 DECLARATION OF NULLITY OR PARTIAL ANNULMENT
Article 114 applies to registrations of topographies of semiconductor
products.
Article 172 EXPIRY
In addition to the provisions of Article 37, a registration of a topography
of a semiconductor product expires:
a) 10 years after the last day of the calendar year in which the registration
application was formally submitted or the last day of the calendar year
in which the topography was commercially exploited in any place, if earlier;
b) If the topography has not been commercially exploited, 15 years after
the date on which it was fixed or encoded for the first time.
CHAPTER III Designs or models
SECTION I General provisions
Article 173 DEFINITION OF A DESIGN OR MODEL
A design or model represents the appearance of a product in whole or in
part by virtue of such characteristics as lines, contours, colours, forms,
textures or materials used in the product itself and its ornamentation.
Article 174 DEFINITION OF PRODUCT
1. A product is any industrial or crafted article, including, inter alia,
the components for assembling a complex product, packaging, presentation
elements, graphic signs and typographic characters, but excluding computer
programs.
2. A complex product is any product composed of multiple components that
can be removed from it for the purpose of stripping it, and replaced in
it for the purpose of reassembling it.
Article 175 LIMITATIONS ON REGISTRATION (Revoked.)
Article 176 REQUIREMENTS FOR GRANT
1. New designs or models that are distinctive in character shall have
legal protection.
2. Designs or models that are not entirely new but involve novel combinations
of known elements or a different layout of elements already used in such
a way as to endow their products with a distinctive character shall also
have legal protection.
3. Without prejudice to the previous paragraphs, the same applicant may,
before the disclosure of the design or model, apply for registration of
other designs or models that differ from that originally submitted only
in insignificant details.
4. A design or model applied to or incorporated in a product constituting
a component of a complex product is considered to be new and distinctive
in character if it fulfils all the following criteria:
a) It can reasonably be expected that even after being incorporated into
the complex product, it will continue to be visible during the normal
use of the complex product;
b) The visible characteristics of that component meet the requirements
of novelty and distinctiveness of character.
5. For the purpose of subparagraph (a) of the previous paragraph, normal
use shall be understood as any use made by the end user other than conservation,
maintenance or repair.
6. The following are not protected by registration:
a) The visible characteristics of a product resulting exclusively from
its technical function;
b) The characteristics of the appearance of a product that must necessarily
be reproduced in their exact form and dimensions so that the product into
which the industrial model or design is incorporated, or in which it is
applied, be it mechanically connected to another product or inserted
into, around or against the other product, so that both can perform their
function.
7. Registration of a design or model under the conditions set forth in
Articles 177 and 178 is possible, provided that its purpose is to permit
a multiple assembly of interchangeable products, or their connection to
form a modular system, without prejudice to subparagraph (b) of the previous
paragraph.
8. If registration has been refused under subparagraphs Article 197(1)
to (3) or Article 197(4)(a), 197(4)(d) and 197(4)(e) or declared null
and void or annulled under Article 208(1) and Articles 209 and 210, the
design or model may be registered or its right maintained in an altered
form, provided that all the following criteria are met:
a) Its identity is maintained;
b) The necessary alterations are made in order to meet the protection
requirements.
9. The registration or its maintenance in an altered form referred to
in the previous paragraph may be accompanied by a declaration whereby
the holder partially renounces his right or the court decision by which
the registration was declared partially null or partially annulled.
Article 177 NOVELTY
1. A design or model shall be new if, before the application for registration
or priority claim, no identical design or model has been disclosed to
the public in Portugal or abroad.
2. Designs or models are considered identical if their specific
characteristics differ only in insignificant details.
Article 178 DISTINCTIVE CHARACTER
1. A design or model is considered to be distinctive if the overall impression
that it gives to an informed user differs from the overall impression
caused to that user by any model or design published prior to the date
of the registration application or priority claim.
2. Appreciation of distinctive character shall take into account the degree
of freedom afforded to the creator to create the design or model.
Article 179 DISCLOSURE
1. For the purpose of Articles 177 and 178, a design or model shall be
considered to have been disclosed to the public if it has been published
following registration, or in any other circumstance, presented at an
exhibition, used in trade or made known in any other way, except if these
facts could not reasonably have come to the knowledge of persons operating
in the European Union and skilled in the art in question in the course
of their normal activity, before the date of the registration application
or priority claim.
2. An industrial model or design shall, however, not be considered disclosed
by the simple fact of being made known to a third party in explicit or
implicit confidence.
Article 180 NON-PREJUDICIAL DISCLOSURES
1. For the purpose of Articles 177 and 178, a design or model to be registered
shall not be considered to have been disclosed if it has been disclosed
to the public:
a) By the creator or his successor or by a third party following information
provided or measures taken by the creator or his successor;
b) In the 12 months preceding the date of submission of a registration
application or, if priority is claimed, the date of priority.
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2. Paragraph 1 also applies if a design or model has been disclosed to
the public as a result of an abuse regarding the creator or his successor.
3. An applicant wishing to benefit from the provisions of the previous
paragraphs shall, when submitting the application or within one month,
indicate the date and place where the disclosure or exhibition took place
and submit a probative document showing said date and reproducing the
products in which the design or model was incorporated or to which it
was applied.
4. An applicant for registration of a design or model who has exhibited
products in which the design or model was incorporated or to which it
was applied, at an official or officially recognised international
exhibition falling within the scope of the Convention relating to
International Exhibitions signed in Paris on 22 November 1928 and revised
on 30 November 1972, may, if he submits the application within six months
of the date of the first exhibition of these products, claim a priority
right as of that date, pursuant to Article 12.
5. An applicant who wishes to claim priority under the previous paragraph
shall, when submitting the application or within one month, submit a
certificate issued by the entity responsible for the exhibition showing
the date of the first public disclosure and reproducing the products in
which the design or model was incorporated or to which it was applied.
6. At the applicant’s request, the time limits set forth in paragraphs
3 and 5 may be extended, once only, for the same period.
Article 181 GENERAL RULE ON RIGHT TO REGISTRATION
Article 58 applies to designs or models.
Article 182 SPECIAL RULES ON OWNERSHIP OF REGISTRATION
Article 59 applies to the registration of designs or models, without
prejudice to provisions regarding copyright.
Article 183 CREATOR’S RIGHTS
Article 60 applies to designs or models.
SECTION II Registration process
Article 184 FORM OF APPLICATION
1. An application to register a design or model shall be made on a form
in Portuguese indicating or containing:
a) The applicant’s name, nationality, address or place of business, tax
number if resident in Portugal and email address, if any;
b) An indication of the products in which the design or model is intended
to be applied or incorporated using the international classification for
industrial designs and models;
c) The creator’s name and country of residence;
d) The country in which the first application was submitted and the date
and number of said application if the applicant wishes to claim priority;
e) The colours, if they are part of the claim;
f) The signature or electronic ID of the applicant or his representative.
2. Fancy expressions used to designate a design or model or figuring on
its representations may not be protected.
3. For the purpose of Article 11(1), priority shall be granted to the
registration application for a design or model that, in addition to the
particulars required in paragraph 1(a), first submits a representation
of the design or model or, instead, if priority of a previous application
is requested, an indication of the number and date of the previous
application and the body to which it was submitted.
Article 185 DOCUMENTS TO BE SUBMITTED
1. Applications shall be accompanied by the following elements in
Portuguese:
a) (Revoked.)
b) Drawings or photographs of the design or model;
c) A drawing or photograph of the design or model in a form defined by
order of the Chairperson of the Board of Directors of the National Industrial
Property Institute for the purpose of publication, with a reproduction
of the product whose design or model is to be registered;
d) (Revoked.)
2. Applications shall also be accompanied by the following elements:
a) Authorisation to include in the design or model any symbols, crests,
emblems or distinctions of the state, municipalities or other Portuguese
or foreign public or private bodies, the emblem and name of the Red Cross
or other similar bodies and any signs covered by Article 6-ter of the
Paris Convention for the Protection of Industrial Property;
b) Authorisation to include in the design or model signs of a high symbolic
value, such as religious symbols.
3. On his own initiative or by order of the National Industrial Property
Institute, an applicant may submit a description in no more than 50 words
per product mentioning only the elements figuring in the representations
of the design or model or in the sample submitted, omitting any mention
of the novelty, distinctiveness or technical value of the design or model.
4. The elements referred to in the previous paragraphs shall abide by
the formal requirements fixed by order of the Chairperson of the Board
of Directors of the National Industrial Property Institute.
5. If the object of an application is a complex product, the drawings
referred to in paragraph 1 shall represent and identify the parts of the
product that are visible during normal use.
6. If the object of an application is a two-dimensional design and the
application includes, pursuant to Article 190, a request to postpone
publication, the drawings referred to in paragraph 1 may be replaced by
a specimen or sample of the product into which the design is incorporated
or applied, without prejudice to their presentation at the end of the
postponement period.
7. The drawings or photographs of designs or models referred to in Article
187(1) shall be sequentially numbered in accordance with the total number
of designs or models to be included in the same application.
8. On being instructed to do so by the National Industrial Property Institute,
the applicant shall submit the product itself or other photographs taken
from angles that make it possible to form a more precise idea of the design
or model.
9. If a design or model registration application claims a colour combination,
the drawings or photographs shall show the colours claimed and the
description, if any, shall make reference thereto.
Article 186 UNITY OF APPLICATION
1. The same application may not be used to request more than one registration
and a different registration shall correspond to each design or model.
2. Designs or models comprising several essential parts to form a whole
shall be included in a single registration.
Article 187 MULTIPLE APPLICATIONS
1. Without prejudice to the previous article, an application may include
up to 100 products, provided that they belong to the same class in the
international classification of industrial designs and models.
2. If products do not belong to the same class, the applicant shall be
instructed to divide the application.
3. Each design or model included in a multiple application or registration
may be separated or transmitted independently of the others.
4. If it is decided that some of the products included in a multiple
application are not designs or models under Articles 173 and 174, the
applicant shall be instructed to reformulate them as a patent or utility
model, though the date of the original application shall remain as the
date of application.
Article 188 EXAMINATION AS TO FORM AND EX OFFICIO EXAMINATION
1. After a registration application has been submitted to the National
Industrial Property Institute, the formal requirements set forth in
Articles 173 and 174, Article 180(3) and 180(5) and Articles 184 to 187
shall be examined within one month.
2. During the time limit mentioned in the previous paragraph, the National
Industrial Property Institute shall ascertain ex officio whether the
application incurs any of the prohibitions set forth in Article 197(1)
to 197(3).
3. If the National Industrial Property Institute finds formal
irregularities in the application or any of the grounds for refusal set
forth in Article 197(1) to 197(3), the applicant shall be given one month
to correct or remedy the objections made.
4. At the applicant’s request, the time limit mentioned in the previous
paragraph may be extended once only for the same period.
89
5. If, in the applicant’s response, the irregularities are corrected or
the objections remedied, the application shall be published for the purposes
set forth in the following article.
6. If, on the other hand, the irregularities or objections persist,
registration shall be refused and the decision published in the Industrial
Property Bulletin, with a reproduction of the design or model.
7. If the objections have regard to only some of the products, the application
shall be published for the others, with a mention of the products related
to which there are objections that have not been remedied.
8. Immediate notification will be made of the refusal set forth in paragraph
6, pursuant to Article 16(1), with an indication of the Industrial Property
Bulletin in which the decision was published.
9. The provisions of this article shall not prevent the National Industrial
Property Institute from invoking breach of the requirements mentioned
in paragraph 1 or the existence of the prohibitions mentioned in paragraph
2, after the time limits set forth in Article 17 and instructing the applicant
to correct or remedy the objections made on the terms and within the time
limits set forth in this article.
Article 189 PUBLICATION
1. If a registration application is in order or any irregularities have
been corrected or objections remedied pursuant to paragraph 5 of the
previous article, it shall be published in the Industrial Property Bulletin
with a reproduction of the design or model and the international
classification of industrial designs and models, for the purpose of
objections by anyone considering themselves to have been prejudiced by
the grant of the registration.
2. The publication referred to in the previous paragraph may be postponed
under the terms of the following article.
3. After publication, anyone so wishing may request a copy of the elements
in the case file.
4. Without prejudice to the previous article, whenever an applicant fails
to submit the necessary clarifications or authorisations, any expressions
breaching Article 184(2) shall be removed ex officio from the indication
of the products, and from the representations of the design or model and
publications resulting from the application.
Article 190 POSTPONEMENT OF PUBLICATION
1. On submitting an application to register a design or model, the applicant
may request that its publication be postponed for no more than 30 months
as of the date of submission of the application or priority claimed.
2. Requests to postpone publication submitted after the date of the
registration application shall be considered and decided upon by the
National Industrial Property Institute.
3. If publication is postponed, the design or model shall be entered in
the registrations of the National Industrial Property Institute, but the
application process will not be disclosed.
4. Whenever an applicant requests postponement of publication, four months
after submission of the application, the National Industrial Property
Institute shall publish a notice of said postponement, which shall include
indications that at least identify the applicant, date of presentation
of the application and the postponement period requested.
5. At the applicant’s request, the application may be published before
the end of the postponement period, if all the necessary legal formalities
have been completed.
6. (Revoked.)
Article 190-A SUBSEQUENT FORMALITIES
1. If no opposition has been filed within the time limit, total or partial
registration shall be granted and the decision on the total or partial
grant shall be published in the Industrial Property Bulletin.
2. Whenever an opposition is submitted, after the discussion has ended,
the National Industrial Property Institute shall analyse the grounds for
refusal alleged by the claimant within one month.
3. The grounds for refusal set forth in Article 197(4) and 197(5) shall
only be analysed by the National Industrial Property Institute if invoked
by the claimant.
4. If an opposition is considered to be founded, registration shall be
refused and the decision to refuse shall be published in the Industrial
Property Bulletin.
5. If an opposition is considered unfounded, registration shall be granted
and the decision to grant shall be published in the Industrial Property
Bulletin.
6. If an opposition is considered to be founded only with regard to some
of the products included in the application, registration shall be partially
granted for the remaining products and the partial grant shall be published
in the Industrial Property Bulletin decision with a mention of the products
refused.
7. Notification of the decisions mentioned in the previous paragraphs
shall be given immediately as set forth in Article 16(1) with an indication
of the Industrial Property Bulletin in which the decision was published.
Article 191 OPPOSITION (Revoked.)
Article 192 PROVISIONAL REGISTRATION (Revoked.)
Article 193 REQUEST FOR EXAMINATION (Revoked.)
Article 194 EXAMINATION (Revoked.)
Article 195 PARTIAL GRANT (Revoked.)
Article 196 ALTERATIONS TO APPLICATION (Revoked.)
Article 197 REASONS FOR REFUSAL
1. In addition to the provisions of Article 24, registration of a design
or model shall be refused if it contains:
a) Symbols, crests, emblems or distinctions of the state, municipalities
or other Portuguese or foreign public or private bodies, the emblem and
name of the Red Cross or other similar bodies and any signs covered by
Article 6-ter of the Paris Convention for the Protection of Industrial
Property, unless authorised;
b) Signs of a high symbolic value, such as religious symbols, unless
authorised;
c) Expressions or figures against the law, morality, public policy and
accepted principles;
d) (Revoked.)
e) (Revoked.)
f) (Revoked.)
g) (Revoked.)
2. Registration of a design or model shall also be refused if it consists
exclusively of the Portuguese flag or some of its elements.
3. Registration of a design or model containing the Portuguese flag, among
other elements, is also refused if it is likely to:
a) Mislead a consumer into thinking that the products or services come
from an official body;
b) Result in disrespect for the Portuguese flag or any of its elements.
4. When invoked in an objection, registration shall be refused if:
a) A design or model does not fulfil the conditions set forth in Articles
176 to 180;
b) There is a breach of Article 58 or 59, with the necessary adaptations;
c) A design or model interferes with a previous design or model disclosed
to the public after the date of the application or priority claim and
protected since a prior date by a design or model application or
registration;
d) A distinctive sign is used in a later design or model and EU law or
the provisions regulating this sign confer the right to prohibit its use;
e) A design or model constitutes unauthorised use of a work protected
by copyright.
5. Recognition that the applicant wishes to engage in unfair competition
or that this is possible, irrespective of his intention, is also grounds
for refusal of a design or model registration when involved in an objection.
Article 198 NOTIFICATION OF FINAL DECISION (Revoked.)
SECTION III Effects of registration
Article 199 EXTENT OF PROTECTION
1. The scope of the protection conferred by registration shall cover all
designs or models that do not give a different overall impression to an
informed user.
93
2. In the appreciation of scope of protection, the degree of freedom that
the creator had to carry out his design or model should be taken into
account.
Article 200 RELATIONSHIP WITH COPYRIGHT
Any registered design or model also enjoys the protection conferred by
legislation on copyright, as of the date on which the design or model
was created or defined in any form.
Article 201 DURATION
1. The duration of registration shall be five years as of the date of
application and it can be renewed for equal periods up to a limit of 25
years.
2. The renewals referred to in the previous paragraph shall be requested
in the last six months of validity of the registration.
Article 202 INDICATION OF DESIGN OR MODEL
While a registration is in effect, its holder may use on the products
the expression “Design or model no.” or the abbreviations “DM no.”.
Article 203 RIGHTS CONFERRED BY REGISTRATION
1. Registration of a design or model confers on its holder the exclusive
right to use it and prohibit its use by third parties without his consent.
2. The use referred to in the previous paragraph particularly covers the
manufacture, offer, commercializing, import, export or use of a product
in which this design or model has been incorporated or to which it has
been applied and the storage of said product for the same purposes.
Article 204 LIMITATION OF RIGHTS CONFERRED BY REGISTRATION
The rights conferred by registration do not cover:
a) Acts performed in private and not for commercial purposes;
b) Acts for experimental purposes;
c) Acts of reproduction for the purpose of reference or for didactic purposes,
provided that they are compatible with fair commercial practices, do not
unduly prejudice the normal exploitation of the design or model and that
the source is mentioned;
d) Equipment on board ships and aircraft registered in another country
when temporarily passing through Portuguese territory;
e) The import of spare parts and accessories for these ships and aircraft;
f) Repairs to these ships and aircraft.
Article 205 EXHAUSTION OF THE RIGHTS
The rights conferred by registration do not allow their holder to prohibit
acts relating to products in which a design or model has been incorporated
or to which it has been applied when the design or model is the object
of prior protection by registration, or when the product has been marketed
by the holder or with his consent in the European economic area.
Article 206 INALTERABILITY OF DESIGNS OR MODELS
1. Designs or models shall remain unaltered for as long as registration
is in effect.
2. Enlargement or reduction to scale shall not affect the inalterability
of designs or models.
Article 207 ALTERATIONS TO DESIGNS OR MODELS
1. Any alteration to the essential specific characteristics of designs
or models may be registered provided that it abides by the requirements
set forth in Article 176.
2. Modifications made to designs or models by the registration holder
that only change insignificant details may be the object of a new
registration or registrations.
3. The registration or registrations referred to in the previous paragraph
shall be annotated in the case file and entered, if any, in the original
title document and in all registrations made under the same provision.
4. The modified registrations referred to in paragraph 2 shall revert
to the public domain at the end of the validity of the original registration.
SECTION IV Invalidity of registration
Article 208 NULLITY
1. In addition to the provisions of Article 33, the registration of a
design or model is rendered null when, in the process of granting it,
the provisions of Article 197(1-3), (4)(a) and (4)(c) are violated.
2. (Revoked.)
Article 209 ANNULLABILITY
1. In addition to the provisions of Article 33, the registration of a
design or model is annullable when, in the process of granting it, the
provisions of Article 197(4)(d),(4)(e) and (5) are violated.
2. (Revoked.)
Article 210 DECLARATION OF NULLITY OR PARTIAL ANNULMENT
1. The registration of one or more products in one and the same registration
can be declared null or annulled, but one cannot partially declare the
nullity of a registration or partially annul the registration for a product.
2. In the event of declaration of nullity or annulment of one or more
products, the respective registration remains valid for the remaining
part of the registration.
SECTION V Prior protection
SUBSECTION I General provisions
Article 211 OBJECT OF APPLICATION (Revoked.)
Article 212 APPLICATION FOR PRIOR PROTECTION (Revoked.)
Article 213 SECRECY AND FILING (Revoked.)
SUBSECTION II Protection application process
Article 214 FORM OF APPLICATION (Revoked.)
SUBSECTION III Effects of application for prior protection
Article 215 DURATION (Revoked.)
Article 216 REGULARISATION OF APPLICATION (Revoked.)
Article 217 RIGHTS CONFERRED BY PRIOR PROTECTION (Revoked.)
Article 218 EXPIRY (Revoked.)
Article 219 CONVERSION OF APPLICATION (Revoked.)
Article 220 REGISTRATION OF AN APPLICATION FOR ADMINISTRATIVE ACTS OR
LAWSUITS (Revoked.)
Article 221 FEES (Revoked.)
CHAPTER IV Trademarks
SECTION I General provisions
SUBSECTION I Trademarks of products and services
Article 222 COMPOSITION OF TRADEMARK
1. A trademark may consist of a sign or set of signs that can be represented
graphically, namely words - including the names of persons -, drawings,
letters, numbers and sounds, the form of the product or respective packaging,
provided that they adequately distinguish the products and services of
one company from those of others.
2. A trademark may also consist of advertising phrases for the respective
products or services, provided that they are distinct in character,
regardless of the protection conferred upon them by copyrights.
Article 223 EXCEPTIONS
1. The conditions in the preceding article are not met by:
a) Trademarks that are devoid of any distinctive character;
b) Signs that exclusively consist of the form imposed by the nature of
the product itself, the form of the product necessary for obtaining a
technical result or the form that confers a substantial value on the product;
c) Signs that are exclusively made up of indications that may serve in
commerce to designate the type, quality, quantity, purpose, value,
geographic origin, period or means of production of the product or the
service, or other characteristics thereof;
d) Trademarks that exclusively consist of signs or indications that have
become common use in modern-day language or in the habitual and constant
habits of commerce;
e) Colours, save where they are combined with each other or with graphics,
wording or other particular and distinctive elements.
2. The generic elements referred to in a), c) and d) of the preceding
paragraph that are part of the composition of a trademark will not be
considered for the exclusive use of the applicant, except where, in
commercial practice, the signs have taken on distinctive effectiveness.
3. At the request of the applicant or a complainant, the National Industrial
Property Institute identifies, in the respective grant order, the elements
that make up the trademark for which the applicant does not have exclusive
rights of use.
Article 224 OWNERSHIP AND EXCLUSIVE RIGHT
1. Registration confers upon the holder the right of property and
exclusivity of the trademark for the respective products and services
for which it is designed.
2. The state may likewise enjoy the right of property and exclusivity
of the trademarks it uses provided that it satisfies the legal provisions.
Article 225 RIGHT TO REGISTRATION
The right to register a trademark belongs to those with a legitimate interest,
namely:
a) Industries or manufacturers, for the purpose of distinguishing the
products they manufacture;
b) Traders, for the purpose of distinguishing the products they sell;
c) Farmers and producers, for the purpose of distinguishing the products
of their activities;
d) Artists and craftsmen, for the purpose of distinguishing the products
of their art, craft or profession;
e) Service providers, for the purpose of distinguishing their respective
activities.
Article 226 REGISTRATION BY AN AGENT OR REPRESENTATIVE OF THE RIGHTS HOLDER
If the agent or representative of the holder of the rights over a trademark
registered in one of the EU or WTO Member States but not registered in
Portugal applies for registration of that trademark in his own name, without
authorisation from the aforementioned holder, the latter has the right
to oppose to the application, unless the agent or representative can justify
the proceedings.
Article 227 UNREGISTERED TRADEMARKS
1. Whoever uses an unregistered trademark for a period of no more than
six months has the right of priority, during that period, to register
the trademark and can oppose to any registration applications made by
other entities.
2. The veracity of the documents provided as proof of that priority shall
be evaluated freely, with the exception of authentic documents.
SUBSECTION II Collective trademarks
Article 228 DEFINITION
1. A collective trademark is defined as an association trademark or
certification trademark.
2. The signs or indications used in commerce to designate the geographic
origin of the products or services can constitute a collective trademark.
3. Registration of a collective trademark also confers upon the holder
the right to control the commercialization of the respective products,
pursuant to the terms established in the law, statutes or internal
regulations.
Article 229 ASSOCIATION TRADEMARKS
An association trademark is a specific sign belonging to an association
of natural or legal persons, the members of which use it, or intend to
use it, for products or services related to the association’s object.
Article 230 CERTIFICATION TRADEMARKS
1. A certification trademark is a specific sign belonging to a legal person
that controls the products or services or establishes standards to which
said products or services must adhere.
2. This sign serves for use on products or services subjected to that
control or for which the standards were established.
Article 231 RIGHT TO REGISTRATION
1. The following have the right to register collective trademarks:
a) Legal persons to which a guarantee mark or certification mark has been
attributed or recognised and which can apply said mark to certain qualities
of products or services;
b) Legal persons that supervise, control or certify economic activities,
in order to distinguish the products of these activities, or that come
from certain regions, depending on their objects and pursuant to the
respective statutes or organic laws.
2. The legal persons referred to in the preceding subparagraph b) must
promote inclusion, in the respective organic laws, statutes or internal
regulations, of provisions that define the persons that have the right
to use the trademark, the conditions in which such use must take place
and the rights and obligations of interested parties in the case of
usurpation or counterfeit.
3. Amendments to the organic laws, statutes, or internal regulations that
modify the collective trademark regime only take effect in relation to
third parties if the National Industrial Property Institute is informed
of them by the organisation Directive Council that has registered the
trademark.
Article 232 APPLICABLE PROVISIONS
The provisions of this code on product and service trademarks are applicable
to collective trademarks, with the due adjustments.
SECTION II Registration process
SUBSECTION I National route
Article 233 APPLICATION
1. An application to register a trademarkshall be made on a form in Portuguese
indicating or containing:
a) The applicant’s name, nationality, address or place of business, tax
number if resident in Portugal and email address, if any;
b) The products or services the trademark is designed for, grouped in
accordance with the categories in the international product and service
classification, and defined in precise terms, preferably using the
alphabetical terms in the list of the aforementioned classification;
c) Express indication that the trademark is an association or certification
trademark, should the applicant wish to register a collective trademark;
d) Express indication that the trademark is a three-dimensional or sound
mark;
e) The registration number of any award featured or referred to in the
trademark;
f) The colours in which the trademark is used, if these are claimed as
a distinctive element;
g) The country of first application for registration of the trademark,
and the date and the number of that application, in the event that the
applicant wishes to claim right of priority;
h) Indication of the date from which the applicant has been using the
trademark, in the event of the situation provided for in Article 227;
i) The signature or electronic id of the applicant or respective
representative.
2. For the purposes of Article 11(1), priority is given to the registration
application that first submits a representation of the intended trademark,
in addition to the information required under 1 (a) and (b).
Article 234 PREPARING AN APPLICATION
1. An application must be accompanied by a graphic representation of the
sign or, when the trademark is a sound mark, the respective musical phrases,
in a support defined by an order of the Chairperson of the Board of Directors
of the National Industrial Property Institute.
2. When a registration application claims the rights for a certain
combination of colours, the graphic representation referred to in the
preceding paragraph must show the respective colours.
3. An application must also be accompanied by the following:
a) Authorisation from any person whose name or portrait may feature in
the trademark and who is not the applicant;
b) Indication of the legal and statutory provisions or internal regulations
that govern the use of the trademark when it is a collective one;
c) Authorisation to include in the trademark any symbols, crests, emblems
or distinctions of the state, municipalities or other Portuguese or foreign
public or private bodies, the emblem and name of the Red Cross or other
similar bodies and any signs covered by Article 6-ter of the Paris Convention
for the Protection of Industrial Property;
d) Authorisation from the holder of a prior registration and the holder
of an exclusive licence, if applicable, and, save provisions to the contrary
in the contract, for the purposes of Article 243;
e) Authorisation to include in the trademark signs of a high symbolic
value, such as religious symbols.
4. Failure to meet the requirements referred to in the preceding paragraph
does not affect the relevance of the application for the purposes of
priority.
5. When a trademark features inscriptions in little-known characters,
the applicant shall submit a transliteration and, if possible, a translation
of said inscriptions.
6. When the figurative elements of a trademark contain verbal elements,
the applicant must specify these in the registration application.
Article 235 SINGLE REGISTRATION
There may only be one registration for the same trademark for one and
the same product or service.
Article 236 PUBLICATION OF THE APPLICATION
1. Notification of submission of an application is published in the
Industrial Property Bulletin so that it may be opposed by whoever feels
they would be prejudiced if the registration in question is granted.
2. The notification must include a reproduction of the trademark,
classification of the products and services in their respective categories,
in line with the international classification, as well as the information
referred to in Article 233(1), with the exception of the applicant’s tax
number and electronic mail address.
3. The National Industrial Property Institute is responsible for checking
the classification referred to in the preceding paragraph, and correcting
it where necessary through inclusion of the exact category terms and removal
of incorrect terms.
Article 237 PROCEDURAL FORMALITIES
1. The National Industrial Property Institute analyses the application,
which consists of examination of the trademark to be registered and
comparison with other trademarks and distinctive trade signs.
2. (Revoked.)
3. Registration is granted if, after completion of the examination, no
grounds for refusal are identified and any opposition, if lodged, is
dismissed as unfounded.
4. Registration is refused immediately if an opposition is considered
to be founded.
5. Registration is provisionally refused when the examination reveals
grounds for refusal and any possible opposition is considered unfounded.
6. The applicant is notified of the provisional refusal and must respond
within a period of one month, on pain of the refusal becoming final if
the objections detected are maintained. This period can be extended once
for the same period of time at the request of the interested party.
7. (Revoked.)
8. If, following the applicant’s response, it is concluded that the refusal
is unfounded, or that the objections raised have been resolved, the grant
order is issued within a period of one month beginning on the date of
submission of the response, without prejudice to Article 11(7).
9. If, following the applicant’s response, the original assessment is
not altered, the provisional refusal is confirmed by a definitive order.
10. (Revoked.)
11. Notification of the definitive order is immediately made in accordance
with Article 16(1), indicating the Industrial Property Bulletin in which
the respective notification is published.
Article 238 GROUNDS FOR REFUSAL OF A REGISTRATION
1. In addition to the provisions of Article 24, registration of a trademark
is refused when:
a) It consists of signs that cannot be represented graphically;
b) It consists of signs devoid of any distinctive character;
c) It consists exclusively of signs or indications referred to in Article
223(1)(b) to (e);
d) (Revoked.)
e) It contradicts the provisions of Articles 222, 225, 228 to 231 and
235.
2. (Revoked.)
3. Registration of a trademark consisting exclusively of signs or
indications referred to in Article 223(1)(a), (c) and (d) is not refused
if it has acquired distinctive character.
4. Registration of a trademark will also be refused if it contains in
some or all of its constitutive elements:
a) symbols, crests, emblems or distinctions of the state, municipalities
or other Portuguese or foreign public or private bodies, the emblem and
name of the Red Cross or other similar bodies and any signs covered by
Article 6-ter of the Paris Convention for the Protection of Industrial
Property;
b) signs of a high symbolic value, such as religious symbols, unless these
are authorised;
c) Expressions or figures that are contrary to the law, morals, public
order and morality;
d) Signs that may mislead the public, namely as to the nature, properties,
utility or geographic origin of the product or service for which the
trademark is designed.
5. Registration of a trademark that is made up exclusively of the national
flag of the Portuguese Republic or some of its constitutive elements will
also be refused.
6. Registration will also be refused for a trademark that contains, amongst
other elements, the national flag, wherever the trademark is likely to:
a) Mislead the public as to the geographic origin of the products or services
for which it is designed;
b) Lead the consumer to erroneously think that the products or services
come from an official body;
c) Generate disrespect or a diminution of prestige for the national flag
or any of its elements.
Article 239 OTHER GROUNDS FOR REFUSAL
1. Further grounds for refusal of registration of a trademark are:
a) Reproduction or imitation of all or part of a trademark previously
registered by another person for identical or similar products or services
that may mislead or confuse the consumer or comprise the risk of association
with the already registered trademark;
b) Reproduction or imitation of all or part of a logotype already registered
by another person to distinguish an entity whose activity is identical
or similar to the products or services for which the trademark is designed,
if it is likely to mislead or confuse the consumer;
c) Violation of other industrial property rights;
d) The use of names, portraits or any other expressions or figurations
without the authorisation of the persons they relate to or, if these are
deceased, of the heirs or relatives to the fourth degree or, if authorisation
is obtained, if it generates disrespect or diminution of prestige for
those persons;
e) Recognition that the applicant’s intent is one of unfair competitionor that unfair competition is a possible outcome, regardless of the applicant’s intention.
2. When cited in an opposition, the following are also grounds for refusal:
a) Reproduction or imitation of a business or corporate name and other distinctive signs, or merely a characteristic part thereof, that do not belong to the applicant or where the applicant is not authorised to use them, if it is likely to mislead or confuse the consumer;
b) Violation of copyrights;
c) Use of references to a specific rural or urban real estate property that does not belong to the applicant;
d) Violation of Article 226.
3. In the case set forth in subparagraph d) of the preceding paragraph, in lieu of refusal of the registration, its transfer, either in part or whole, may be granted in favour of the holder, if the latter so requests.
Article 240 IMITATION OF UNREGISTERED PACKAGING OR LABELS
1. Registration will also be refused for trademarks which, pursuant to
Article 245(1)(b) and (c), are a reproduction or imitation of a certain
external feature – namely packaging or a label, including the respective
form, colouring and layout of wording, medals, awards and other elements
– that is proven to be used by others in their registered trademarks.
2. The interested parties in the refusal of trademarks under this article
may only intervene in the respective process after they have made the
application for registration of their trademark with the external features
referred to in the preceding paragraph.
Article 241 WELL-KNOWN TRADEMARKS
1. Registration will also be refused for a trademark that, as a whole
or in an essential part, is a copy, imitation or interpretation of another
well-known trademark in Portugal if it is applied to identical or similar
products or services and may be mistaken for the other trademark, or if,
through this application, it is possible to establish an association with
the holder of the well-known trademark.
2. The interested parties in the refusal of the registration of the
trademarks as referred to in the preceding paragraph may only intervene
in the respective process after they have made the application for
registration of the trademark that gives origin to and is the basis of
their interest.
Article 242 PRESTIGIOUS TRADEMARKS
1. Without prejudice to the preceding article, registration will also
be refused if a trademark, even when it is designed for products or services
without identity or affinity, is an interpretation of, or is identical
or similar to, an already existing trademark that enjoys prestige in
Portugal or the European Union, if it is registered in the European Union,
and whenever use of the subsequent trademark seeks to take undue advantage
of the distinctive character or prestige of the trademark or may prejudice
it.
2. The provisions of paragraph 2 of the preceding article apply to the
above paragraph 1, whereby it is understood that, in this case, registration
of the trademark for the products or services that gave it the prestige
must be applied for.
Article 243 DECLARATION OF CONSENT
Registration of a trademark that may be confused with already registered
trademarks or other industrial property rights requires a declaration
of consent from the holders of said rights and the holders of exclusive
licences, where these exist and the contracts do not establish otherwise.
Article 244 PARTIAL REFUSAL
Whenever there are grounds for refusing registration of a trademark only
with respect to some of the products or services for which it was applied
for, the refusal applies only to those specific products or services.
Article 245 CONCEPT OF IMITATION OR USURPATION
1. A registered trademark is considered to have been imitated or usurped,
as a whole or in part, by another trademark, when, cumulatively:
a) The registered trademark has priority;
b) Both trademarks are designed for identical or similar products or
services;
c) The trademarks are so similar in graphic, figurative, phonetic or any
other terms that the consumer can easily be misled or confused, or that
it comprises a risk of association with the already registered trademark,
so that the consumer can only distinguish between them after attentive
scrutiny or comparison.
2. For the purposes of paragraph 1(b) above:
a) Products and services in the same Nice classification category may
be considered to be not similar;
b) Products and services that are not in the same Nice classification
category may be considered to be similar.
3. Partial imitation or usurpation of a trademark is defined as the use
of a certain fantasy name that is part of another already registered
trademark.
Article 246 SPECIAL REGISTRATION PROCESS (Revoked.)
SUBSECTION II Community trademark
Article 247 CONVERSION TO APPLICATION FOR NATIONAL TRADEMARK REGISTRATION
1. When an application for registration of a Community trademark is refused,
withdrawn or considered withdrawn, or when the registration of a Community
trademark is no longer in effect, the respective applicant or holder may
apply for conversion of its application or registration into a national
trademark registration application, pursuant to the Regulations referred
to in Article 40(2).
2. Upon receipt of a conversion application, pursuant to the preceding
paragraph, the National Industrial Property Institute decides on its
admissibility; if admissible, it notifies the applicant to perform the
following within a period of two months beginning on the date of
notification:
a) Fill out a special national registration application form in Portuguese;
b) Submit a graphic representation of the sign, or, if the trademark consists
of sounds, the respective musical phrases on a support defined in an order
of the Chairperson of the Board of Directors of the National Industrial
Property Institute;
c) (Revoked.)
d) Provide an address in Portugal, an e-mail address or fax number, if
the applicant is in the conditions provided for in Article 10(1)(b), for
the purposes of paragraph 4 of the same article;
e) Pay the corresponding national registration application fee.
3. When the requirements listed in the preceding paragraph are met, the
application is given a national registration case file number and the
corresponding formalities can ensue.
SUBSECTION III International registration
Article 248 RIGHT TO REGISTRATION
1. The applicant or holder of a trademark registration that is a Portuguese
national or is domiciled or has a place of business in Portugal can ensure
protection of its trademark in the member states that are contracting
parties of the Madrid Union, in accordance with the Madrid Agreement or
Protocol.
2. (Revoked.)
Article 249 APPLICATION
An application for international registration is made on a special form
that is submitted to the National Industrial Property Institute, in
accordance with the provisions of the Agreement or Protocol.
Article 250 RENUNCIATION
The holder of an international registration can at all times renounce
protection of its trademark, totally or in part, in the territory of one
or more contracting states, in accordance with the Madrid Agreement or
Protocol.
Article 251 ALTERATIONS TO REGISTRATION
1. The National Industrial Property Institute notifies the aforementioned
International Secretary of all amendments to the registration of national
trademarks that may affect international registration, for the purpose
of registration in the latter, as well as the publication and notification
to the contracting states that have granted them protection.
2. All applications for registration of the transfer of trademarks to
persons without the legal capacity to obtain an international registration
shall be refused.
Article 252 PUBLICATION OF THE APPLICATION
A notice of the application for protection in Portugal is published in
the Industrial Property Bulletin for the purpose of allowing oppostions
by whoever may consider himself prejudiced by the possible grant of the
registration.
Article 253 PROCEDURAL FORMALITIES
1. The provisions of Article 237 (1) and (3) to (11) apply to internationally
registered trademarks.
2. The subsequent terms of the procedure are likewise regulated by the
provisions applicable to national registration and those provided for
in the Madrid Agreement or Protocol.
Article 254 GROUNDS FOR REFUSAL
Protection within Portugal for internationally registered trademarks is
refused whenever there are any grounds for refusal of national registration.
SECTION III Effects of registration
Article 255 DURATION
A registration has a duration of 10 years, beginning on the date of the
respective grant. It may be indefinitely renewed for identical periods.
Article 256 STATEMENT OF INTENT TO USE (Revoked.)
Article 257 INDICATION OF REGISTRATION
During the registration’s period of validity, the proprietor may use the
words “registered trademark”, the initials “R.T.” or also simply the symbol
“R” or ®.
Article 258 RIGHTS CONFERRED BY REGISTRATION
Registration of a trademark confers upon the proprietor the right to prevent
third parties from using an identical or similar sign without its consent
in economic activities for products or services that are identical or
similar to those for which the trademark was registered and which, as
a result of the similarity between the signs and the affinity between
the products or services, may give rise to a risk of confusion or association
in the mind of the consumer.
Article 259 EXHAUSTION OF THE RIGHTS
1. The rights granted by the registration do not allow the proprietor
to prohibit the use of the trademark on products commercialized by itself
or with its consent in the European economic area.
2. The preceding paragraph does not apply whenever there are legitimate
grounds for the prohibition, such as when the products are modified or
altered after they are placed in the market.
Article 260 LIMITS TO RIGHTS GRANTED BY REGISTRATION
The rights granted by registration of a trademark do not entitle the
proprietor to prevent third parties from using, in their economic activities,
provided that it is carried out in conformity with the regulations and
honest practices in industrial and commercial matters:
a) Their own name and address;
b) Indications relating to the type, quality, quantity, purpose, value,
geographic origin and period and means of production of the product or
service or other features of the products or services;
c) The trademark, whenever this is required to indicate the purpose of
a product or service, such as in the form of accessories or spare parts.
Article 261 INALTERABILITY OF A TRADEMARK
1. A trademark must be kept unaltered. Any change to its constitutive
elements is subject to a new registration.
2. Excepted from the preceding paragraph are simple modifications that
do not prejudice the identity of the trademark and only affect its dimensions,
the material on which it has been stamped, printed or reproduced and the
ink or colour, if the latter has not been expressly claimed as one of
the specific features of the trademark.
3. The identity of a trademark is also not affected by the inclusion or
suppression of express indication of the product or service for which
the trademark is designed, nor by any alteration of the proprietor’s
domicile or place of business.
4. A nominative trademark is only subject to the rules of inalterability
in relation to the expressions that make up the trademark. It may be used
with any figurative aspect provided it does not violate the rights of
third parties.
SECTION IV Transfer and licences
Article 262 TRANSFER
1. Trademark registrations are transferable where a transfer would not
mislead the public as to the origin of the product or service or as to
the essential characters for its appreciation.
2. Whenever a transfer is partial, in terms of the products or services,
a copy of the process should be requested, which will serve as the basis
for an autonomous registration, including the title rights.
3. The provisions of the preceding paragraphs apply to registration
applications and, in the event of partial transfer, new applications retain
the rights of priority already held.
Article 263 TRANSFER RESTRICTIONS
Trademarks registered to organisations that monitor or control economic
activities are not transferable, save where allowed by a special provision
in the law, statutes or internal regulations.
Article 264 LICENCES
The proprietor of a trademark registration may invoke the rights granted
by the registration against a licensee that violates any clause or provision
of the licensing contract, particularly relating to the contract’s term
of validity, the identity of the trademark, the nature of the products
or services for which the licence was granted, the demarcation of the
licence zone or territory or the quality of the products manufactured
or services provided by the licensee.
SECTION V Extinction of a trademark registration or rights derived from
it
Article 265 NULLITY
1. In addition to the provisions of Article 33, a trademark registration
is null and void when, in the process of granting it, the following provisions
are violated:
a) Article 238(1) and (4) to (6);
b) (Revoked.)
2. The provisions of Article 238(3) apply to nullity actions, with the
necessary adjustments.
Article 266 ANULLABILITY
1. In addition to the provisions of Article 34, a trademark registration
is annullable when, in the process of granting it, the provisions of Articles
239 to 242 have been violated.
2. Pursuant to Article 241 or 242, the interested party in the annulment
of a trademark must apply for registration of the trademark that gives
rise to the request for annulment for the products or services that gave
the mark renown or prestige, respectively.
3. A registration cannot be annulled if the already existing trade name
invoked in an opposition does not satisfy the condition of serious use
in accordance with Article 268.
4. Annulment actions must be proposed within the 10-year period beginning
on the date of issue of the registration grant order, without prejudice
to the right to apply for annulment of a trademark registered in bad faith,
which is imprescriptible.
Article 267 PRECLUSION BY TOLERANCE
1. The proprietor of a registered trademark that has knowledge of and
tolerates the use of a trademark registered after registration of its
own mark for a period of five consecutive years forfeits the right, based
on propriety of a prior trademark, to apply for annulment of the registration
of the later trademark or to oppose to its use in relation to the products
or services the later trademark has been used for, unless the later trademark
has been registered in bad faith.
2. The five-year period provided for in the preceding paragraph begins
on the date on which the proprietor takes knowledge of the fact.
3. The proprietor of a subsequently registered trademark cannot oppose
the pre-existing rights, even if the latter cannot be invoked against
the later trademark.
Article 268 USE OF TRADEMARK
1. The following are considered serious uses of a trademark:
a) Use of the trademark in its registered form or in a form that only
differs in elements that do not alter its distinctive character, in
accordance with Article 261, by the trademark proprietor, or a licensee
with a duly registered licence;
b) Use of the trademark, as defined in the preceding subparagraph, for
products or services destined for export only;
c) Use of the trademark by a third party, provided this is controlled
by the proprietor and is for the purpose of retaining the registration.
2. Use of a collective trademark is defined as that carried out with the
consent of the proprietor.
3. Use of a guarantee or certification trademark is defined as that carried
out by a qualified person.
4. The commencement or resumption of serious use in the three-month period
immediately prior to submission of an application for declaration of expiry,
beginning on the date of the end of an uninterrupted period of five years
of non-use, is not taken into consideration if the diligences for the
commencement or resumption of use only take place after the proprietor
takes knowledge of the fact that such an application for declaration of
expiry may be filed.
Article 269 EXPIRY
1. In addition to the provisions of Article 37, expiry of a registration
shall be declared if the trademark has not been the object of serious
use for a period of five consecutive years, unless there are just grounds
for the non-use and without prejudice to the provisions of Article 268(4).
2. Expiry of a registration shall also be declared if, after the date
on which the registration was made:
a) The trademark itself becomes the usual designation in commerce for
the product or service for which it was registered, as a consequence of
the activity or inactivity of the proprietor;
b) The trademark becomes likely to mislead the public, namely as to the
nature, quality and geographic origin of the products or services, as
a result of the use of the trademark by the proprietor or by a third party
with the proprietor’s consent for the products or services for which it
was registered.
3. Expiry of a collective trademark registration shall be declared if:
a) The legal person in whose favour it was registered ceases to exist;
b) That legal person consents to the trademark being used in a fashion
contrary to its general purposes or to statutory provisions.
4. Registration does not expire when serious use of the trademark commences
or is resumed before application for a declaration of expiry, without
prejudice to paragraph 4 of the preceding article.
5. The period referred to in paragraph 1 begins on the date of registration
of the trademark, which, for international trademarks, is the date of
registration with the International Secretary.
6. Whenever there are grounds for expiry of a trademark registration only
in relation to some of the products or services it was designed for, the
expiry shall only affect those products or services.
Article 270 DECLARATION OF EXPIRY APPLICATIONS
1. Declaration of expiry applications are submitted to the National
Industrial Property Institute.
2. The aforementioned applications may be based on any of the grounds
set forth in paragraphs 1 to 3 of the preceding article.
3. The proprietor of a registration is always notified of an application
for declaration of expiry so that it may respond within a period of one
month.
4. At the request of the interested party, submitted in due time, the
period referred to in the preceding paragraph can be extended, once only,
by one more month.
5. (Revoked.)
6. It is the responsibility of the registration proprietor or licensee,
if applicable, to provide proof of use of the trademark, without which
it is presumed that it is not used.
7. At the end of the response period, the National Industrial Property
Institute decides, within a period of one month, whether to declare the
registration expired or not.
8. The declaration of expiry procedure is terminated before a decision
is reached if the respective application is withdrawn.
9. Expiry only enters into force after it has been declared following
conclusion of the full procedure at the National Industrial Property
Institute.
10. The expiry is registered and notice thereof is published in the
Industrial Property Bulletin.
CHAPTER V Awards
SECTION I General provisions
Article 271 OBJECT
Awards are defined as:
a) Accolades of merit awarded by the Portuguese state or by foreign states;
b) Medals, diplomas and pecuniary or any other prizes obtained at official
or officially recognised exhibitions, fairs and competitions held in
Portugal or in foreign countries;
c) Diplomas and certificates of analysis, or praise, issued by state
laboratories or agencies or organisations qualified for that purpose;
d) Warrants of purveyor to heads of state, the government or other official
establishments, both national and foreign;
e) Any other accolades or demonstrations of preference of an official
nature.
Article 272 CONDITIONS FOR MENTIONING AWARDS
Awards may not be applied to products or services other than those for
which they were granted.
Article 273 OWNERSHIP
Awards of any type granted to manufacturers, traders, farmers and any
other entrepreneur are their property.
SECTION II Registration process
Article 274 APPLICATION
1. An application to register an award shall be made on a form in Portuguese
indicating or containing:
a) The applicant’s name, nationality, address or place of business, tax
number if resident in Portugal and email address, if any;
b) The awards for which registration is being applied and the organisation
that granted them and respective dates;
c) The products or services distinguished with the awards;
d) Either the complete or partial logotype for the corresponding award,
if applicable;
e) The signature or electronic identification of the applicant or respective
representative.
Article 275 PREPARING THE APPLICATION
1. The application must be accompanied by the original diplomas or other
documentation proving the granting of the award, or authenticated
photocopies thereof.
2. Proof of receipt of an award can also be provided by enclosing a duly
certified copy of the official publication in which the award is granted
or published, or just the part of that publication that suffices to identify
it.
3. The National Industrial Property Institute may demand translation into
Portuguese of foreign-language diplomas or other documentation.
4. Registration of awards that include references to logotypes requires
prior registration of said logotypes.
Article 276 GROUNDS FOR REFUSAL
In addition to the provisions of Article 24, registration of an award
is refused when:
a) The type of award is not included in any of the categories provided
for in this code;
b) It is proven to have been applied to products or services other than
those for which it was granted;
c) There has been transfer of ownership of the award, without transfer
of establishment or of the relevant part of the latter, should this be
the case;
d) It is demonstrated that the award was revoked or does not belong to
the applicant.
Article 277 RETURN OF DOCUMENTS
1. At the end of the period for lodging appeals, the diplomas or other
documents submitted in the procedure are returned to the applicants that
submit a corresponding request and are substituted by authenticated
photocopies.
2. Documents are returned against receipt, which is added to the procedure
file.
SECTION III Use and transfer
Article 278 INDICATION OF AWARD
The use of legitimately obtained awards is permitted even if they are
not registered, but only when registration has been carried out, the
reference to them or copy of them can be accompanied by the designation
“Registered Award” or the abbreviated forms “‘RA’” or “RA”.
Article 279 TRANSFER
Ownership of the awards is transferred with the legal formalities required
for transfer of the assets to which they are an accessory.
SECTION IV Extinction of registration
Article 280 ANNULLABILITY
In addition to the provisions of Article 34, registration is annullable
when the award is annulled.
Article 281 EXPIRY
1. A registration expires when the award is revoked or cancelled.
2. Expiry of a registration results in termination of the use of the award.
CHAPTER VI Trade name and insignia
SECTION I General provisions
Article 282 RIGHT TO REGISTRATION (Revoked.)
Article 283 COMPOSITION OF TRADE NAME (Revoked.)
Article 284 COMPOSITION OF INSIGNIA (Revoked.)
Article 285 GROUNDS FOR REFUSAL (Revoked.)
SECTION II Registration process
Article 286 APPLICATION (Revoked.)
Article 287 PREPARING THE APPLICATION (Revoked.)
Article 288 DECLARATION OF CONSENT (Revoked.)
Article 289 SINGLE REGISTRATION (Revoked.)
Article 290 PUBLICATION OF THE APPLICATION (Revoked.)
Article 291 SUBSEQUENT FORMALITIES (Revoked.)
Article 292 REFUSAL (Revoked.)
SECTION III Effects of registration
Article 293 DURATION (Revoked.)
Article 294 INDICATION OF TRADE NAME OR INSIGNIA (Revoked.)
Article 295 RIGHTS GRANTED BY REGISTRATION (Revoked.)
Article 296 INALTERABILITY OF TRADE NAME OR INSIGNIA (Revoked.)
SECTION IV Transfer, nullity, annullability and expiry of registration
Article 297 TRANSFER (Revoked.)
Article 298 NULLITY (Revoked.)
Article 299 ANULLABILITY (Revoked.)
Article 300 EXPIRY (Revoked.)
CHAPTER VII Logotypes
Article 301 COMPOSITION OF LOGOTYPES (Revoked.)
Article 302 RIGHT TO LOGOTYPE (Revoked.)
Article 303 INDICATION OF LOGOTYPE (Revoked.)
Article 304 APPLICABLE RULES (Revoked.)
SECTION I General provisions
Article 304-A COMPOSITION OF LOGOTYPE
1. A logotype may consist of a sign or number of signs that can be represented
graphically, namely by nominative or figurative elements or a combination
of both.
2. A logotype must be appropriate for distinguishing an entity that provides
services or commercializes products. It can be used, for instance, in
places of business, advertising, forms and correspondence.
Article 304-B RIGHT TO REGISTER
Any individual or collective person, public or private, may legitimately
apply for registration of any logotype provided they have a legitimate
interest therein.
SECTION II Registration process
Article 304-C SINGLE REGISTRATION
1. The same sign, when it serves to distinguish one and the same entity,
may only be the object of one logotype registration.
2. One and the same entity may be distinguished through more than one
logotype registration.
Article 304-D APPLICATION
1. Application for registration of a logotype is made on a form, in Portuguese,
indicating or containing:
a) The applicant’s name, nationality, address or place of business, tax
number if resident in Portugal and email address, if any;
b) The type of services provided or products commercialized by the entity
wishing to distinguish itself, along with indication of the respective
Portuguese economic activity classification code;
c) The colours in which the logotype is used, if these are claimed as
distinctive elements of the logotype;
d) The signature or electronic ID of the applicant or its representative.
2. For the purposes of Article 11(1), priority is given to the registration
application that first submits a representation of the intended logotype,
in addition to the information required under a) and b) of the preceding
paragraph.
Article 304-E DOCUMENTS
1. The application must be accompanied by a graphic representation of
the insignia on a support defined in an order issued by the Chairperson
of the Board of Directors of the National Industrial Property Institute.
2. When a registration application claims the rights for a certain
combination of colours, the graphic representation referred to in the
preceding paragraph must show the respective colours.
3. An application must be accompanied by the authorisations referred to
in Article 234(3).
4. The lack of the authorisations referred to in the preceding paragraph
does not affect the relevance of an application for the purposes of priority.
However, registration can only be granted if all requirements referred
to above have been met.
5. When a logotype contains inscriptions in little-known characters, the
applicant must submit a transliteration and, if possible, a translation
of such inscriptions.
6. When the figurative elements of a logotype contain verbal elements,
the applicant must specify these in the registration application.
Article 304–F PUBLICATION OF THE APPLICATION
1. Notification of submission of an application is published in the
Industrial Property Bulletin so that it may be opposed by anyone who feels
they would be prejudiced if the registration in question is granted.
2. The publication shall contain a reproduction of the logotype and include
the indications referred to in Article 304-D(1), with the exception of
the applicant’s tax number and email address.
Article 304–G PROCEDURAL FORMALITIES
The procedural formalities for trademarks referred to in Article 237 also
apply to the registration of logotypes, with the necessary adjustments.
Article 304-H GROUNDS FOR REFUSAL OF A REGISTRATION
1. In addition to the provisions of Article 24, registration of a logotype
is refused when:
a) It consists of signs that cannot be represented graphically;
b) It consists of signs devoid of any distinctive character;
c) It consists exclusively of signs or indications referred to in Article
223(1)(b) to (e);
d) It violates Articles 304-A to 304-C.
2. Registration of a logotype consisting exclusively of signs or indications
referred to in Article 223(1)(a), (c) and (d) is not refused if it has
acquired distinctive character.
3. Registration of a logotype will also be refused if it contains in some
or all of its constitutive elements:
a) Symbols, crests, emblems or distinctions of the state, municipalities
or other Portuguese or foreign public or private bodies, the emblem and
name of the Red Cross or other similar bodies and any signs covered by
Article 6-ter of the Paris Convention for the Protection of Industrial
Property, unless these are authorised;
b) Signs of a high symbolic value, such as religious symbols, unless these
are authorised;
c) Expressions or figures that are contrary to the law, public order and
morality;
d) Signs that may mislead the public, in particular as to the activity
carried out by the entity wishing to distinguish itself.
4. Registration of a logotype that is made up exclusively of the national
flag of the Portuguese Republic or some of its constitutive elements will
also be refused.
5. Registration will also be refused for a logotype that contains, amongst
other elements, the Portuguese flag, wherever the logotype is likely to:
a) Mislead the public as to the geographic origin of the products
commercialized or services provided by the entity for which it is designed;
b) Lead the consumer to erroneously think that the products or services
come from an official body;
c) Generate disrespect or a diminution of prestige for the Portuguese
flag or any of its elements.
Article 304–I OTHER GROUNDS FOR REFUSAL
1. Further grounds for refusal of a registration are:
a) Reproduction or imitation of all or part of a logotype previously
registered by another person to distinguish an entity whose activity is
identical or similar to that of the entity wishing to distinguish itself,
if it may mislead or confuse the consumer;
b) Reproduction or imitation of all or part of a mark previously registered
by another person for products or services that are identical or similar
to those included in the activity carried out by the entity wishing to
distinguish itself, if this may mislead or confuse the consumer or create
the risk of association with the already registered trademark;
c) Violation of other industrial property rights;
d) The use of names, portraits or any other expressions or figurations
without the authorisation of the persons they relate to, or, if these
are deceased, of the heirs or relatives to the fourth degree or, if
authorisation is obtained, if it generates disrespect or diminution of
prestige for those persons;
e) Recognition that the applicant’s intent is one of unfair competition
or that unfair competition is a possible outcome, regardless of the
applicant’s intentions.
f) The use of names, appellations, figures or designs that are a reproduction
or imitation of a logotype already registered by another person; however,
it is permissible that two or more persons with identical surnames include
those names in their respective logotypes, provided that they are completely
distinguishable from each other.
2. The grounds for refusal set forth in Articles 240 to 242, with the
necessary adjustments, also apply to logotype registration.
3. When cited in an opposition, the following are also grounds for refusal:
a) Reproduction or imitation of a business or corporate name, or merely
a characteristic part thereof, that do not belong to the applicant or
where the applicant is not authorised to use them, if this is likely to
mislead or confuse the consumer;
b) Violation of copyright;
c) Use of references to a specific rural or urban real estate property
that does not belong to the applicant.
Article 304–J DECLARATION OF CONSENT
The provisions of Article 243 apply to the registration of logotypes,
with the necessary adjustments.
SECTION III Effects of registration
Article 304-L DURATION
A registration has a duration of 10 years, beginning on the date of the
respective grant. It may be indefinitely renewed for identical periods.
Article 304-M INDICATION OF LOGOTYPE
During the registration’s period of validity, the proprietor may use the
designation “Registered Logotype”, “Registered Logo” or simply “RL” on
the logotype.
Article 304-N RIGHTS GRANTED BY REGISTRATION
Registration of a logotype confers upon the proprietor the right to prevent
third parties from using, without its consent, any other identical or
similar sign that is a reproduction or imitation of its own.
Article 304-O INALTERABILITY OF LOGOTYPE
1. A logotype must be kept in an unaltered state. Any change to its
constitutive elements is subject to a new registration.
2. Inalterability is defined in accordance with the rules established
for trademarks in Article 261(2), (3) and (4), with the necessary
adjustments.
SECTION IV Transfer, nullity, annullability and expiry of registration
Article 304-P TRANSFER
1. Logotype registrations are transferable where a transfer would not
mislead or confuse the public.
2. When it is used in an establishment, the rights resulting from a logotype
registration application or registration can only be transferred, be it
a free or paid transfer, together with the establishment, or part of the
establishment, with which the logotype is associated.
3. Without prejudice to Article 31(5), the transfer of the establishment
involves the respective logotype, which may remain as it is registered,
unless the transferor reserves it for another existing or future
establishment.
Article 304-Q NULLITY
1. In addition to the provisions of Article 33, a logotype registration
is null and void when, in the process of granting it, Article 304-H(1)
and (3) to (5) are violated.
2. The provisions of Article 304-H(2) apply to nullity actions, with the
necessary adjustments.
Article 304-R ANNULLABILITY
1. In addition to the provisions of Article 34, a registration is null
and void when, in the process of granting it, the provisions of Article
304-I are violated.
2. Annulment actions must be proposed within the ten-year period beginning
on the date of issue of the registration grant order, without prejudice
to the provisions of the following paragraph.
3. The right to apply for annulment of a logotype registered in bad faith
is imprescriptible.
Article 304-S EXPIRY
In addition to the provisions of Article 37, a registration expires:
a) Due to closure and liquidation of the establishment or extinction of
the entity;
b) Due to failure to use the logotype during a period of five consecutive
years without just grounds.
CHAPTER VIII Appellations of origin and geographic indications
SECTION I General provisions
Article 305 DEFINITION AND OWNERSHIP
1. Denomination of origin is defined as the name of a region, of a specific
place or, in exceptional cases, of a country, which serves to designate
or identify a product:
a) Originating from that region, specific place or country;
b) Whose quality or characteristics are derived, essentially or exclusively,
from the geographic environment, including the natural and human factors,
and whose production, processing and development are carried out within
the demarcated geographic area.
2. Certain traditional appellations, be they geographic or not, which
designate a product originating from a specific region or place and which
satisfy the conditions provided for in (b) of the preceding paragraph
are also considered appellations of origin.
3. A geographic indication is understood to mean the name of a region,
a specific place or, in exceptional cases, a country that serves to designate
or identify a product:
a) Originating from that region, specific place or country;
b) Whose reputation, specific quality or another characteristic can be
attributed to that geographic origin and whose production, processing
or development are carried out within that demarcated geographic area.
4. Appellations of origin and geographic indications, when registered,
are the common property of the residents or those established in the place,
region or territory in an effective and serious manner and can be used
indistinctly by those, within the respective area, who are engaged in
any characteristic production branch, when authorised by the holder of
the registration.
5. Exercise of this right does not depend on the importance of the business
operation or the nature of the products. An appellation of origin or a
geographic indication can, consequently, be applied to any typical product
from the place, region or territory that meets the traditional and customary,
or duly regulated, conditions.
Article 306 REGIONAL DEMARCATION
If the boundaries of a place, region or territory pertaining to a certain
appellation or indication are not demarcated by law, said boundaries are
defined by the officially recognized bodies that control, in the respective
area, the corresponding production branch, which take into account the
traditional and constant practices together with the higher interests
of the national or regional economy.
SECTION II Registration process
SUBSECTION I National route
Article 307 APPLICATION
1. The application for registration of appellations of origin and geographic
indications is made in a form, in Portuguese, indicating:
a) The name of the natural or legal persons, public or private, with the
capacity to acquire the registration, the respective tax number and email
address, if any;
b) The name of the product or products, including the appellation of origin
or the geographic indication;
c) The traditional or regulated conditions for the use of the appellation
of origin, or the geographic indication, and the boundaries of the
respective place, region or territory;
e) The signature or electronic ID of the applicant or his representative.
2. The conditions for national registration of a trademark apply to these
registrations, with the necessary adjustments.
Article 308 GROUNDS FOR REFUSAL
In addition to the provisions of Article 24, registration of an appellation
of origin or geographic indication is refused when:
a) The application is made by a person without the capacity to acquire
it;
b) The appellation of origin or geographic indication in question does
not meet the conditions of Article 305;
c) It constitutes a reproduction or imitation of an already registered
appellation of origin or geographic indication;
d) It may mislead the public, in particular as to the nature, quality
and geographic origin of the respective product;
e) It violates industrial property rights or copyright;
f) It violates the law, public order or morality;
g) It may favour unfair competition.
SUBSECTION II International route
Article 309 INTERNATIONAL REGISTRATION OF APPELLATIONS OF ORIGIN
1. The entities referred to in Article 307(1)(a) may affect international
registration of their appellations of origin pursuant to the Lisbon
Agreement of 31 October 1958.
2. International registration applications must be submitted to the
National Industrial Property Institute in accordance with the Lisbon
Agreement.
3. Protection of appellations of origin registered under the Lisbon
Agreement is, in all matters that do not contradict that agreement, subject
to the rules that govern the protection of appellations of origin in
Portugal.
SECTION III Effects, nullity, annullability and expiry of registration
Article 310 DURATION
An appellation of origin and a geographic indication have an unlimited
duration and their ownership is protected by the rules set forth in this
code, in special legislation and in any rules or legislation established
against false indications of origin, even if they are registered and
regardless of whether they are part of a registered trademark or not.
Article 311 INDICATION OF REGISTRATION
During the period of validity of a registration, the products for which
the respective uses are authorised may bear the following references:
a) “Registered Appellation of Origin” or “AO”;
b) “Registered Geographic Indication” or “GI”.
Article 312 RIGHTS GRANTED BY REGISTRATION
1. Registration of an appellation of origin or geographic indication confers
upon the proprietor the right to prevent:
a) The use by third parties, in the designation or presentation of a product,
of any means that indicates or suggests that the product in question
originates from a geographic region other than the true place of origin;
b) Use that would constitute unfair competition as defined in Article
10bis of the Paris Convention, as modified by the Stockholm Revision of
14 July 1967;
c) Use by persons not authorised by the registration holder.
2. The wording that makes up a legally defined, protected and controlled
appellation of origin or a geographic indication may not feature in any
form in appellations, labels, advertising or any documentation on products
that do not come from the respective demarcated regions.
3. The aforementioned prohibition also applies when the true origin of
the products is mentioned or the wording belonging to the appellations
or indications in question are accompanied by qualifiers such as “type”,
“style”, “quality” or similar expressions and also extends to the use
of any expression, presentation or graphic combination that may mislead
or confuse the consumer.
4. Likewise prohibited is the use of a appellation of origin or geographic
indication of prestige in Portugal or the European Union for products
without identity or affinity, whenever the use thereof seeks to unjustly
derive benefit from the distinctive or prestigious character of the
previously registered appellation of origin or geographic indication or
can be prejudicial to them.
5. The provisions of the preceding paragraphs do not prohibit a seller
from putting its name, address or trademark on products coming from a
region or country different from that in which the same products are sold.
In such a case, the seller may not, however, suppress the trademark of
the producer or manufacturer.
Article 313 NULLITY
In addition to the provisions of Article 33, the registration of an
appellation of origin or geographic indication is null and void when,
in the process of granting it, the provisions of Article 308(b), (d) and
(f) have been violated.
Article 314 ANNULLABILITY
1. In addition to the provisions of Article 34, the registration of an
appellation of origin or a geographic indication is annullable when, in
the process of granting it, the provisions of Article 308(a), (c) (e)
or (g) are violated.
2. Annulment actions must be proposed within a period of ten years beginning
on the date of the registration grant order, without prejudice to the
following paragraph.
3. The right to apply for annulment of a registration made in bad faith
is imprescriptible.
Article 315 EXPIRY
1. Registration expires, at the request of any interested party, when
the appellation of origin or geographic indication transforms itself –
in accordance with the traditional, customary and constant practices of
the economic activity – into a simple generic designation for a
manufacturing system or a certain type of product.
2. Wine products, mineral/medicinal waters and other products whose
geographic appellation of origin is the object of special protection and
supervision laws in their respective country are exempt from the provisions
of the preceding paragraph.
TITLE III Infringements
CHAPTER I General provisions
Article 316 GUARANTEES OF INDUSTRIAL PROPERTY
Industrial property has the guarantees established by law for property
in general and enjoys special protection under this code and other
legislation and conventions in force.
Article 317 UNFAIR COMPETITION
1. Unfair competition is defined as all acts of competition that contradict
the rules and honest practices in any branch of economic activity, in
particular:
a) Acts that may create confusion as to the company, establishment, products
or services of competitors, regardless of the means employed;
b) False statements made in carrying out an economic activity with the
aim of discrediting competitors;
c) Unauthorised claims or references made with the aim of deriving benefit
from the credit or reputation of another person’s name, establishment
or trademark;
d) False indications as to one’s own credit or reputation, relating to
the capital or financial situation of the company or establishment, to
the nature and scope of its activities and business or to the quality
or quantity of its clientele;
e) False descriptions or indications as to the nature, quality or utility
of the products or services, as well as false information on the origin,
locality, region or territory of a factory, workshop, premises or
establishment, regardless of the mode adopted;
f) Suppression, concealment or alteration, by the seller or any other
intermediary, of the appellation of origin or geographic indication of
the products or the registered trademark of the producer or manufacturer
on products for sale whose packaging has not been altered in any way.
2. The measures provided for in Article 338-I apply, with the necessary
adjustments.
Article 318 PROTECTION OF UNDISCLOSED INFORMATION
Pursuant to the preceding article, an illicit act is defined in particular
as the disclosure, acquisition or use of the business secrets of a competitor
without its consent, provided that said information:
a) Is secret in the sense that it is not common knowledge or easily accessible,
in its totality or in the exact configuration and connection of its
constitutive elements, for persons in the circles that normally deal with
the type of information in question;
b) Has commercial value based on the fact that it is secret;
c) Has been the object of considerable diligences on the part of the person
with legal control over it, with a view to keeping it secret.
Article 319 INTERVENTION BY CUSTOMS AUTHORITIES
1. The Customs authorities that carry out interventions will retain or
suspend Customs clearance of goods that show evidence of violation of
this code, regardless of the Customs situation said goods are in.
2. The intervention referred to in the preceding paragraph may be requested
by any interested party or at the initiative of the Customs authorities
themselves.
3. The Customs authorities shall immediately notify the interested parties
of the retention or suspension of the clearance authorisation for the
goods.
4. The Customs intervention expires if, within a period of ten working
days beginning on the date of receipt of the respective notification to
the rights holder, the competent legal proceedings with a request for
seizure of the goods in question are not initiated.
5. The period provided for in the preceding paragraph can be extended
by an identical period in duly justified cases.
CHAPTER II Criminal and administrative offences
SECTION I General provisions
Article 320 SUBSIDIARY RIGHT
The provisions of Decree-Law 28/84 of 20 January apply subsidiarily, namely
with respect to the criminal liability and liability in terms of
administrative offences of legal persons and vicarious liability, whenever
said provisions are not contrary to the provisions of this code.
SECTION II Criminal offences
Article 321 VIOLATION OF PATENT EXCLUSIVITY, THE UTILITY MODEL OR THE
SEMICONDUCTOR TOPOGRAPHY
The following acts, carried out without the consent of the holder of the
respective right, are punishable by a prison sentence of up to three years
or a fine of up to three hundred and sixty days:
a) Manufacture of artefacts or products that are covered by the patent,
the utility model or the semiconductor topography;
b) Use or application of means or processes that are the object of the
patent, the utility model or the semiconductor topography;
c) Import or distribution of products obtained through any of the
aforementioned methods.
Article 322 VIOLATION OF EXCLUSIVE RIGHTS TO DESIGNS OR MODELS
The following acts, without the consent of the holder of the respective
right, are punishable by a prison sentence of up to three years or a fine
of up to three hundred and sixty days:
a) Reproduction or imitation of the whole or some of the characteristic
parts of a registered design or model;
b) Exploiting a registered design or model belonging to another person;
c) Importing or distributing designs or models obtained through any of
the means mentioned in the preceding subparagraphs.
Article 323 COUNTERFEITING, IMITATION OR ILLEGAL USE OF TRADEMARK
The following acts, without the consent of the proprietor of the respective
right, are punishable by a prison sentence of up to three years or a fine
of up to three hundred and sixty days:
a) Counterfeiting, totally or partially, or by any other means reproducing
a registered trademark;
b) Imitating a registered trademark either as a whole or using
characteristic parts thereof;
c) Using counterfeit or imitated trademarks;
d) Using, counterfeiting or imitating well-known trademarks for which
registration has already been applied for in Portugal;
e) Using, even if in products or services without identity or affinity,
trademarks that are an interpretation or are identical or similar to
previously existing trademarks for which registration has been applied
for and that enjoy prestige in Portugal or the European Union, if they
are Community trademarks, whenever the use of the subsequent trademarks
seeks to unjustly derive undue benefit from the distinctive or prestigious
character of the prior trademarks or may be prejudicial to them;
f) Using, in products, services, or an establishment or company, a
registered trademark belonging to another person.
Article 324 SALE, CIRCULATION OR CONCEALMENT OF PRODUCTS OR ARTICLES
The act of selling, putting into circulation or concealing counterfeit
products, produced by any of the means and in any of the conditions referred
to in Articles 321 to 323, with knowledge of that situation, is punishable
with a prison sentence of up to one year or a fine of up to 120 days.
Article 325 VIOLATION AND ILLEGAL USE OF AN APPELLATION OF ORIGIN OR
GEOGRAPHIC INDICATION
The following acts are punishable by a prison sentence of up to three
years or a fine of up to 360 days:
a) Reproducing or imitating, totally or partially, a registered appellation
of origin or geographic indication;
b) Using in one’s products, without the right of use of an appellation
of origin or geographic indication, signs that constitute reproduction,
imitation or expression thereof, even if the true origin of the products
in question is indicated or the appellation or indication is accompanied
by qualifying expressions such as “style”, “type”, “quality”, “method”,
“imitation”, “rival to”, “superior to” or others.
Article 326 PATENTS, UTILITY MODELS AND REGISTRATIONS OF DESIGNS OR MODELS
OBTAINED IN BAD FAITH
1. Whoever, acting in bad faith, succeeds in being granted a patent, utility
model or registration of a design or model that does not legitimately
belong to them – in accordance with Articles 58, 59, 121, 122, 156, 157,
181 and 182 – shall be punished by a prison sentence of up to one year
or a fine of up to 120 days.
2. Through its sentence, the court automatically annuls the patent, utility
model or registration or, at the request of the interested party, transfers
them to the inventor or creator.
3. Legal proceedings for the transfer of a patent, utility model or
registration referred to in the preceding paragraph can be initiated
independently of any criminal proceedings brought about by this crime.
Article 327 REGISTRATION OBTAINED OR MAINTAINED BY ABUSE OF RIGHT
Whoever applies for, secures or maintains in validity, on its own behalf
or on behalf of a third party, the registration of a trademark, name,
insignia or logotype that is a reproduction or imitation of a trademark
or commercial name belonging to a national of any member state of the
Union, regardless of whether it enjoys priority in Portugal, as established
in Article 12, and with the proven purpose of affecting the assets of,
and consequently creating a loss for, the affected party in question,
or obtaining an illegitimate economic advantage, is punished by a prison
sentence of up to three years or a fine of up to 360 days.
Article 328 REGISTRATION OF A NON-EXISTENT ACT OR REGISTRATION WITH
CONCEALMENT OF THE TRUTH
Whoever performs a legally non-existent act or an act with manifest
concealment of the truth, independently of the violation of the rights
of third parties, is subject to a prison sentence of 3 years or a fine
of up to 360 days.
Article 329 COMPLAINT
The investigation of the crimes provided for in this code depends on a
complaint being lodged.
Article 330 DISPOSAL OF SEIZED ITEMS
1. The objects manifesting a crime provided for in this code are forfeited
in favour of the state, as well as the materials or instruments predominantly
used in the practice of that crime, unless the offended holder of the
respective right gives its express consent that said objects can once
again enter the commercial circuits or that they are given another purpose.
2. Objects declared forfeited, as referred to in the preceding paragraph,
are totally or partially destroyed whenever it is not possible to eliminate
the part of them or the distinctive sign on them that constitutes violation
of the right.
SECTION III Administrative offences
Article 331 UNFAIR COMPETITION
Whoever practises any of the acts of unfair competition defined in Articles
317 and 318 is subject to punishment by a fine of (euro) 3,000 to (euro)
30,000, if the person in question is a legal person, and (euro) 750 to
(euro) 7,500, in the case of a natural person.
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Article 332 INVOCATION OR ILLEGAL USE OF AWARD
Whoever commits any of the following acts, without the consent of the
holder of the respective right, is subject to punishment by a fine of
(euro) 3,000 to (euro) 30,000, if the person is a legal person, and (euro)
750 to (euro) 7,500, in the case of a natural person:
a) Invoking or making reference to an award registered in another person’s
name;
b) Using, or falsely claiming possession of an award that was not granted
or never existed;
c) Using designs or any other indications that constitute imitation of
awards to which the person is not entitled in correspondence or advertising,
on signs, façades or windows of the establishment or in any other fashion.
Article 333 VIOLATION OF RIGHTS TO NAME AND INSIGNIA
Whoever, without consent from the holder of the respective right, uses
in its establishment, in advertising, correspondence, products or services,
or in any other fashion, a name or emblem that constitutes a reproduction
or is an imitation of a name or emblem already registered by another person
is subject to punishment by a fine of (euro) 3,000 to (euro) 30,000, if
the person is a legal person, and (euro) 750 to (euro) 7,500, in the case
of a natural person.
Article 334 VIOLATION OF EXCLUSIVENESS OF LOGOTYPE
Whoever, without the consent of the holder of the respective right, uses
in its establishment or entity, in advertising, correspondence, products,
services or in any other fashion, a sign that constitutes a reproduction
or is an imitation of a logotype already registered by another person
is subject to punishment by a fine of (euro) 3,000 to (euro) 30,000, if
the person is a legal person, and (euro) 750 to (euro) 3,740, in the case
of a natural person.
Article 335 PREPARATORY ACTS
Whoever, without the consent of the holder of the respective right, and
with the intention of preparing commitment of the acts referred to in
Articles 321 to 327 of this code, manufactures, imports, acquires or keeps
for itself, or for another party, signs that are constitutive elements
of registered trademarks, names, emblems, logotypes, appellations of
origin or geographic indications is subject to punishment by a fine of
(euro) 3,000 to (euro) 30,000, if the person is a legal person, and (euro)
750 to (euro) 7,500, in the case of a natural person.
Article 336 USE OF UNLAWFUL TRADEMARKS
1. Whoever uses, as non-registered distinctive signs, any of the signs
indicated in Article 238(4)(a) and b) and 238(6), and those indicated
in Article 239(1)(d) is subject to punishment by a fine of (euro) 3,000
to (euro) 30,000, if the person is a legal person, and (euro) 750 to (euro)
3,740, in the case of a natural person.
2. The products or articles with the marks prohibited under the preceding
paragraph may be seized and declared forfeited in favour of the state,
at the request of the Public Prosecution Service.
Article 337 IMPROPER USE OF A NAME, INSIGNIA OR LOGOTYPE
Whoever unlawfully uses in its name or in the signs of its establishment
or in its logotype, be it registered or not, a business name or corporate
name that does not belong to the applicant, or even only a characteristic
part of said names, where it may mislead or confuse the consumer is subject
to punishment by a fine of (euro) 3,000 to (euro) 30,000, if the person
is a legal person, and (euro) 750 to (euro) 3,740, in the case of a natural
person, unless it can prove consent for, or legitimacy of, said use.
Article 338 INVOCATION OF IMPROPER USE OF PRIVATE RIGHTS
The following acts are punishable by a fine of (euro) 3,000 to (euro)
30,000, if the person is a legal person, and (euro) 750 to (euro) 7,500,
in the case of a natural person:
a) Presenting oneself as the holder of an industrial property right provided
for in this code when one is not the holder of the right or when the right
has been declared null and void or has expired;
b) Unduly using or applying the patent, utility model or registration
indications authorised solely for the holders of the respective rights;
c) (Revoked.)
CHAPTER III Procedure
SECTION I Measures and procedures to ensure the enforcement of the
industrial property rights
SUBSECTION I General provisions
Article 338-A COMMERCIAL SCALE
1. For the purposes of Article 338-C(2), Article 338-H(2)(a) and Article
338-J(1), acts committed at the commercial scale shall mean all those
135
that violate industrial property rights and are designed to create a direct
or indirect economic or commercial advantage.
2. Acts committed by end consumers acting in good faith are excluded from
the definition in the preceding paragraph.
Article 338-B LEGITIMACY
The preventive measures and procedures provided for in this section can
be requested by all persons with a direct interest in having them decreed,
such as the holders of the industrial property rights and, also, save
stipulation to the contrary, the holders of licences in accordance with
the respective contracts.
SUBSECTION II Evidence
Article 338-C MEASURES TO OBTAIN EVIDENCE
1. Whenever evidence is in the possession of, held by, or under the control
of the opposing or a third party, the interested party may request of
the court that it be presented, provided that, to justify its intentions,
it presents sufficient indication of a violation of industrial property
rights.
2. When the acts in question are practised at the commercial scale, the
claimant may also ask the court for the presentation of banking, financial,
accounting or commercial documents that are in the possession of, accessible
to or under the control of the opposing or third party.
3. In compliance with the provisions in the preceding paragraphs, the
court, while guaranteeing protection of confidential information,
notifies the respondent that it must present the evidence in its possession
within the designated period, implementing the necessary actions in the
event of non-compliance.
Article 338-D MEASURES TO PRESERVE EVIDENCE
1. Whenever industrial property rights are violated, or there are grounds
to believe a third party may cause serious, difficult-to-repair harm to
said rights, the interested party may request urgent and effective
provisional measures aimed at preserving evidence of the alleged violation.
2. These evidence preservation measures may include a detailed description,
with or without samples, or the effective seizure of the goods suspected
of violating industrial property rights, as well as, whenever considered
appropriate, of the materials and instruments used in producing and
distributing said goods, as well as documentation pertaining to them.
Article 338-E FORMALITIES AND CONTESTATION
1. Whenever a delay in implementing the measures may cause irreparable
damages to the claimant, or whenever there is a serious risk of destruction
or concealment of evidence, the measures provided for in the preceding
paragraph may be applied without a prior hearing of the respondent.
2. When the evidence preservation measures are implemented without a prior
hearing of the respondent, the latter is immediately notified of this.
3. Following the notification provided for in the preceding paragraph,
the respondent may request a review of the implemented measures within
a period of ten days, providing evidence and presenting arguments not
yet taken into account by the court.
4. When the respondent has been heard, the court may decide on the alteration,
revocation or confirmation of the measures implemented.
Article 338-F CAUSES OF EXTINCTION AND EXPIRY
The causes of extinction and expiry provided for in Article 389 of the
Code of Civil Procedure apply to the measures for obtaining and preserving
evidence, except where they function as preliminary measures for the lodging
of preventive orders in accordance with Article 338-I.
Article 338-G APPLICANT’S RESPONSIBILITY
1. Application of the evidence preservation measures may depend on the
provision of an agreement or other guarantee by the claimant aimed at
guaranteeing the compensation provided for in paragraph 3 herein.
2. In fixing the agreement value, the economic capacity of the claimant
should be taken into account, amongst other relevant factors.
3. Whenever an applied evidence preservation measure is considered
unjustified or ceases to produce effects due to a fact imputable to the
claimant, as well as in cases in which it is proven that there was no
violation or that the fear that another party may cause serious and
difficult-to-repair harm to an industrial property right is unfounded,
the court may order the claimant, if the respondent so requests, to pay
appropriate compensation for repairing any damage caused by application
of the measures.
SUBSECTION III Information
Article 338-H OBLIGATION TO PROVIDE INFORMATION
1. The interested party may request the provision of detailed information
on the origin and distribution networks of the goods or services it suspects
violate industrial property rights, namely:
a) The names and addresses of producers, manufacturers, distributors,
suppliers and other prior holders of the goods or services, as well as
the targeted wholesalers and retailers;
b) Information on the quantities produced, manufactured, delivered,
received or ordered, as well as the price obtained for the goods or services.
2. Provision of the information provided for in this article can be demanded
from the alleged violator or any other person which:
a) Is found in possession of the goods or is found using or providing
the services on the commercial scale that are suspected of violating
industrial property rights;
b) Is indicated by a person referred to in the preceding subparagraph
as having participated in the production, manufacture or distribution
of the goods or in the provision of the services suspected of violating
industrial property rights.
3. The provisions of this article are without prejudice to the application
of other legislative or regulatory provisions, namely those which:
a) Confer upon the interested party the right to more extensive information;
b) Regulate its use in civil or criminal proceedings;
c) Regulate responsibility for abuse of the right to information;
d) Confer the right not to make any statements that may oblige any of
the persons referred to in paragraph 2 above to admit to their own
participation or that of their immediate family members;
e) Confer the right to claim professional secrecy, protection of the
confidentiality of information sources or the legal system of personal
data protection.
SUBSECTION IV Preventive procedures
Article 338-I INJUNCTIONS
1. Whenever there is violation of, or justified fear that another party
may cause serious and difficult-to-repair harm to an industrial property
right, the court may, if the interested party so requests, order the
appropriate measures to:
a) Rule out any imminent violation; or
b) Prohibit continuation of the violation.
2. The court will demand that the claimant provide proof that it is the
holder of the industrial property right in question, or that it is authorised
to use it and that a violation is existent or imminent.
3. The measures provided for in paragraph 1 may also be ordered against
any intermediary whose services are used by third parties to violate
industrial property rights.
4. The court may, as a matter of procedure or at the request of the claimant,
decide on a compulsory monetary penalty with a view to guaranteeing
execution of the measures provided for in paragraph 1.
5. The provisions of Articles 338-E and 338-G apply to this article.
6. At the request of the respondent, the measures decreed referred to
in paragraph 1 may be substituted by an agreement, whenever, after hearing
the claimant, said agreement proves adequate for guaranteeing compensation
to the holder of the right.
7. In determining the measures provided for in this article, the court
shall take into account the type of industrial property rights in question,
safeguarding, in particular, the possibility of the holder of the right
continuing to enjoy its rights without any restriction.
Article 338-J SEIZURE
1. In the case of an infraction at the commercial scale, whether existent
or imminent, and whenever the interested party can prove the existence
of circumstances that may compromise the collection of the compensation
for losses and damages, the court may order the preventive seizure of
the movable and immovable assets of the alleged violator, including the
balances of its bank accounts. The judge may also order communication
of or access to banking, financial or commercial data and information
relating to the violator.
2. Whenever there is violation of industrial property rights, the court
may, if the interested party so requests, order the seizure of the goods
suspected of violating those rights or of the instruments that may merely
serve for the execution of the unlawful act.
3. For the purposes of the preceding paragraphs, the court may demand
that the claimant provide all reasonably accessible evidence to prove
that it is the holder of the industrial property right in question, or
that it is authorized to use it, and that a violation is existent or imminent.
4. The provisions of Articles 338-E to 338-G apply to this article.
SUBSECTION V Compensation
Article 338-L COMPENSATION FOR LOSSES AND DAMAGES
1. Whoever illegally violates the industrial property rights of another
person, be it with criminal intent or by mere blame, must pay compensation
to the injured party for the damages resulting from the violation.
2. In determining the amount of compensation for losses and damages, the
court shall take into account, in particular, the profit obtained by the
violator and the resulting damages and lost profits suffered by the injured
party. It shall also take into consideration the costs borne with the
protection of the right in question and the investigation and termination
of the harmful conduct.
3. In calculating the compensation to be paid to the injured party, the
revenue resulting from the violator’s unlawful conduct shall be taken
into account.
4. The court shall also take the moral damages caused by the violator’s
conduct into account.
5. If, under the preceding paragraphs, it is impossible to quantify the
losses effectively suffered by the injured party, the court may, provided
this is not opposed by the injured party, alternatively define a fixed
amount with recourse to equity, that is based, as a minimum value, on
the remuneration that the injured party would have received if the violator
had requested authorisation to use the industrial property rights in
question and the costs borne with the protection of the industrial property
right and the investigation and termination of the harmful conduct.
6. When, in relation to the injured party, the violator’s conduct
constitutes a repeated practice or proves to be particularly grievous,
the court may determine the compensation due with recourse to the
accumulation of all or some of the aspects provided for in paragraphs
2 to 5.
7. In any case, the court shall fix a reasonable amount aimed at covering
the duly documented costs borne by the injured party in investigating,
and bringing to an end the violation of its rights.
SUBSECTION VI Measures arising from decision of merit
Article 338-M ADDITIONAL PENALTIES
1. Without prejudice to fixation of compensation for losses and damages,
the court’s decision of merit, shall, at the request of the injured party
and at the cost of the violator, decide on measures relating to the fate
of the goods that have violated the industrial property rights.
2. The measures provided for in the preceding paragraph must be adequate,
necessary and proportionate to the gravity of the violation. They may
include destruction or withdrawal or definitive exclusion from commercial
circuits without any compensation to the violator.
3. In applying these measures, the court shall take the legitimate rights
of third parties – in particular consumers – into account.
4. The instruments used in producing the goods that violate the industrial
property rights shall also be the object of the additional penalties
provided for in this article.
Article 338-N RESTRAINING MEASURES
1. The court’s decision of merit may also impose upon the violator measures
aimed at preventing continuation of the proven infraction.
2. These measures may include:
a) Temporary prohibition of certain business activities or professions;
b) Loss of the right to take part in fairs or markets;
c) Temporary or definitive closure of the establishment.
3. The provisions of this article apply to any intermediary whose services
are used by third parties to violate industrial property rights.
4. In decisions determining termination of an unlawful activity, the court
may include a compulsory monetary penalty aimed at ensuring execution
of the sentence.
SUBSECTION VII Publicity measures
Article 338-O PUBLICATION OF JUDICIAL DECISIONS
1. At the request of the injured party, and at the expense of the violator,
the court may order public notification of its final decision.
2. Said public notification may be made through publication in the
Industrial Property Bulletin or disclosure in any media outlet considered
appropriate.
3. Public notification will take the form of a statement containing elements
of the decision and sentence, as well as identification of the parties
involved.
SUBSECTION VIII Subsidiary provisions
Article 338-P SUBSIDIARY RIGHT
In all matters not specifically regulated in this section, the other
measures and procedures provided for in the law, in particular the Code
of Civil Procedure, apply subsidiarily.
Article 339 UNSPECIFIED INJUNCTIONS (Revoked.)
Article 340 SEIZURE (Revoked.)
SECTION II Procedures for criminal and administrative offences
Article 341 INTERVENING PARTIES
In addition to the persons upon which the criminal proceedings laws confer
the right of joining proceedings as intervening parties, legally
constituted entrepreneurial associations also have legitimacy to
intervene in this capacity in the criminal proceedings provided for in
this code.
Article 342 INSPECTION AND SEIZURE
1. Before the opening of an enquiry and without prejudice to Article 329,
the criminal police perform their normal investigative and preventive
duties.
2. Objects that manifest a crime pursuant to this code, as well as the
materials and instruments predominantly used in the practice of said crime,
are seized in all cases.
3. Regardless of whether the injured party lodges a complaint or not,
the judicial authority orders the expert examination of the seized objects
referred to in the preceding paragraph whenever this proves necessary
for determining whether or not they are manufactured or commercialized
by the holder of the right or by someone with the holder’s authorisation.
Article 343 INITIATION OF ADMINISTRATIVE OFFENCE PROCEEDINGS
Initiation of the administrative offence proceedings provided for in this
code is the responsibility of the Autoridade de Segurança Alimentar e
Económica.
Article 344 TRIAL AND APPLICATION OF PENALTIES
The Directive Council of the National Industrial Property Institute is
responsible for deciding on and applying the fines and additional penalties
provided for in this code.
Article 345 APPROPRIATION OF FINES
Fines are distributed as follows:
a) 60% to the state;
b) 20% to the Autoridade de Segurança Alimentar e Económica;
c) 20% to the National Industrial Property Institute.
TITLE IV Fees
Article 346 ESTABLISHMENT OF FEES
Fees are due for the diverse acts provided for in this code. The fees
are fixed by a joint order issued by the Government minister responsible
for the area of finance and the Government member to whom the National
Industrial Property Institute reports, upon a proposal by this institute.
Article 347 FORMS OF PAYMENT
1. All amounts that constitute revenue of the National Industrial Property
Institute are paid in cash, by cheque or postal order, with the respective
requests for the listed acts, and, once checked, are processed in accordance
with the public accounting rules applicable to the National Industrial
Property Institute.
2. The National Industrial Property Institute may allow for other forms
of payment, without prejudice to the preceding paragraph.
Article 348 COUNTING OF MAINTENANCE FEES
1. The annual fees for patents, utility models and the registration of
semiconductor topographies and the quinquennial fees for registration
of designs or models are counted from the dates of the respective
applications.
2. The annual fees for supplementary protection certificates are counted
from the day following the end of validity of the respective patent.
3. The maintenance fees for all other forms of registration are counted
from the date of the respective grant.
4. Whenever, due to a court or arbitration decision or the application
of transitory provisions, the date of commencement of a patent’s, utility
model’s or registration’s term of validity does not coincide with the
date outlined in the preceding paragraphs, the respective annual or
periodical maintenance fees shall count from the former (i.e. actual)
date.
Article 349 PAYMENT TIME LIMITS
1. Only those annual fees for the third year of validity and the following
years for patents, utility models and semiconductor product topographies
are payable, as are the 2nd quinquennial and subsequent period fees for
designs and models.
2. Annual and quinquennial fees are paid in the six-month period prior
to their respective due dates, even if the rights have not yet been granted.
3. Without prejudice to the preceding paragraph, or to paragraph 1 of
the following article, the first payment of annual fees relating to European
and international rights for which applications for registration in
Portugal are made, and the applications for patents and utility models
resulting from the conversion set forth in Articles 86 and 87, can be
made within a period of no more than three months after the date of the
first anniversary following the date of validation or conversion.
4. The first payment of annual fees for supplementary protection
certificates is made in the last six months of the validity of the respective
patent. No payment is due when the certificate’s period of validity is
less than six months. The subsequent annual fees are paid in the six-month
period prior to the respective due date.
5. Fees for the grant of registrations are paid after the date of the
grant within a maximum period of six months beginning on the date of
publication of the grant in the Industrial Property Bulletin.
6. The subsequent payments of maintenance fees for all other registrations
are made in the last six months of the validity of the respective right.
7. The fees referred to in the preceding paragraphs may also be paid,
with a surcharge, within a period of six months beginning on the end of
the period of validity. Failure to do so will result in expiry.
8. Holders of rights are reminded of the dates on which the payment periods
referred to in the preceding paragraphs end, by way of information.
9. Lack of the notification referred to in the preceding paragraph does
not constitute grounds for non-payment of fees on the due dates.
Article 350 REVALIDATION
1. An application for revalidation of any patent, utility model or
registration title that expires due to failure to pay fees can be made
within the period of one year beginning on the date of publication of
the notice of expiry in the Industrial Property Bulletin.
2. The revalidation referred to in the preceding paragraph can only be
authorised with payment of three times the amount of the fees in arrears,
without prejudice to the rights of third parties.
Article 351 REDUCTION
1. Applicants for patents, utility models and registrations of
semiconductor product topographies and designs or models that provide
proof that they do not have the revenues allowing them to cover the costs
for the registration and maintenance of those rights are exempt from payment
of 80% of all fees up to the 7th annual fee and the 2nd quinquennial fee
if they request this before submitting their application.
2. The Board of Directors of the National Industrial Property Institute
assesses the proof referred to in the preceding paragraph and issues its
decision on the request in an order.
Article 352 REIMBURSEMENT
1. As a matter of procedure or at the request of the interested party,
fees are reimbursed whenever they are shown to have been unduly paid.
2. Amounts deposited towards the costs of inspections that are not
authorised, or are withdrawn in due time, are reimbursed at the request
of the depositor.
Article 353 SUSPENSION OF PAYMENT
1. While legal proceedings are pending in a court or arbitration tribunal
on any industrial property right, or while the seizure or confiscation
that may affect a right, or any other form of apprehension performed under
the law, is not lifted, expiry of the respective patent, utility model
or registration is not declared on the grounds of failure to pay the
maintenance fees that fall due.
2. When any of the decisions referred to in the preceding paragraph becomes
final, notice of this fact is published in the Industrial Property Bulletin.
3. All fees owed should be paid, without any surcharge, within a period
of one year beginning on the date of publication of the notice, referred
to in the preceding paragraph, in the Industrial Property Bulletin.
4. At the end of the period established in the preceding paragraph without
payment of the fees owed, expiry of the respective industrial property
right is declared.
5. As a matter of procedure the tribunal informs the National Industrial
Property Institute of pending proceedings.
6. When proceedings are ended, or a seizure, confiscation or any other
apprehension performed under the law is lifted, the tribunal shall inform
the National Industrial Property Institute of this as a matter of procedure.
Article 354 RIGHTS BELONGING TO THE STATE
Industrial property rights belonging to the state are subject to the same
formalities and fees for application, approval, renewals and revalidations
when exploited or used by enterprises of any type.
TITLE V Industrial Property Bulletin
Article 355 INDUSTRIAL PROPERTY BULLETIN
The Industrial Property Bulletin is published by the National Industrial
Property Institute.
Article 356 CONTENT
1. The following are published in the Industrial Property Bulletin:
a) Notices of applications for patents, utility models and registration;
b) Amendments to initial applications;
c) Expiry notices;
d) Grants and refusals;
e) Revalidations;
f) (Revoked.)
g) Declarations of renunciation and withdrawals;
h) Transfers and awards of exploitation licences;
i) Final decisions in judicial proceedings on industrial property;
j) Other facts or decisions that modify or extinguish exclusive rights,
as well as all acts and matters that should be made known to the public;
k) The constitution of rights of guarantee or use and the seizure,
confiscation and other apprehensions of goods performed under the law;
m) Mention of the re-establishment of rights.
2. (Revoked.)
Article 357 TABLE OF CONTENTS (Revoked.)
Article 358 DISTRIBUTION (Revoked.)
