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Enforcement of IPRs in Portugal


Enforcement of IPRs
There are some specific counterfeit hotspots in Portugal, which operate without any undue intervention by authorities like the São Miguel marketplace, Quarteira Marketplace, etc. These are often raided and inspected by authorities yet due to prior knowledge of such inspection activities, the enforcement measures go futile.
Clothing items most often face counterfeiting and piracy in Portugal.
In the Portuguese legal system, provision is made for both more common intellectual property right, including patents, models, trademarks, logos, designations of origin, geographical indications, and copyright, and the less common rights, such as topographies of semiconductors and plant variety rights in the law. Finally, we have trade secrets or know-how that, despite being well established in Portuguese legal practice, namely under unfair competition rules, were expressly included in legislation in December 2018 by the Decree-Law No. 110/2018 to implement the EU Trade Secrets Directive.
Patents, design, trademarks, and copyright are the different types of IPRs protected by IPR enforcement in Portugal.
There are no mandatory pre-trial formalities that need to be undertaken (such as warning letters). Although they have no procedural effects, it is customary to send out cease-and-desist letters before filing a civil action.
The parties can also agree to submit the dispute to mediation prior to the judicial dispute; although, this is not common practice.
Yes, the civil proceedings are barred after 05 years from the grant of decision of the PTO. Compensation can only be claimed for damages caused by the acts of infringement by the end of 03 years, counting from the date on which the injured party became aware of the alleged infringement.
A) Government Authorities - Yes
B) Police Officials - Yes
C) Judiciary - Yes
D) Customs – Yes
A) Injunctions - Yes
B) Monetary Compensation - Yes
C) Raids - Yes
D) Seizures - Yes
E) Destruction - Yes
Depending on the length and the technical complexity of the pleadings, the amount of evidence submitted, and the amount of cases pending before the IP Court at that time, the hearing phase may last up to 07 months. The Lisbon Court of Appeal is currently delivering decisions in around 06 months.
There are penalties for non-compliance of court orders if an IP rights holder abuses the enforcement measures in civil litigation.
A) Responsible Authority - IP Court, Lisbon Court of Appeal, and Supreme Court
B) Imprisonment Term - Trademarks: 03 years
C) Monetary Fine - Trademarks: €50 and €180,000
There are penalties for non-compliance of court orders if an IP rights holder abuses the enforcement measures in criminal prosecution.
Although the timeframe of resolving the matter is strict and not lengthy depending on the complexity of the case, the cost of maintaining the suit, before it arrives at a final decision, may be expensive.
Besides judicial courts, the parties can agree to submit a dispute to an arbitral tribunal. In Portugal, the institutionalized arbitration centre, ARBITRARE, created in 2009, has jurisdiction to resolve disputes arising from industrial property rights, domain names, trade names, and corporate names.
The remedies available under border control measures (customs) in Portugal include destruction of goods or release of goods from detention.
The applicant shall pay the cost of the Customs.
The Customs may release the goods from detention if an IP rights holder abuses the enforcement measures in Custom Recordal of IPRs.
Court proceedings
In a court proceeding, the hearing phase may be divided into two different periods: the preliminary hearing and the final hearing, which incorporates strict rules of limitation that should be followed by both the parties. Any tactic deployed to delay the proceeding may have adverse repercussions, and therefore, having the evidentiary documents prepared at an earlier stage shall be preferred.