Intellectual property is an important component of any business. The company’s trademark identifies the company in the market and is an important asset that must be preserved. Inventions, utility models, computer programs, and others are often the basis of the company’s business.
The law recognizes and protects two types of intellectual rights: (i) «industrial property rights» (propriedade industrial), which cover utility patents, designs and trademarks and (ii) «copyrights» (direitos de autor), that protect literary, artistic and musical works, multimedia creations, videogames and phonograms, computer software and databases.
Portuguese legislation on intellectual property and industrial property is codified in two main codes, the Industrial Property Code (Código da Propriedade Industrial) and the Copyright and Related Rights Code (Código do Direito de Autor e dos Direitos Conexos), which follow European directives and guarantee the same protection as most EU countries.
Portugal is a member of the World Intellectual Property Organisation and a party to several international agreements, including the Berne Convention, the Universal Copyright Convention, the European Patent Convention and the Patent Cooperation Treaty.
Copyright grants its owner the right to exploit literary and artistic works, music, movies and multimedia creations, software, databases, television and radio works, phonograms and videogames, advertising slogans and architecture and engineering works.
Authors are also granted the so-called “moral” or “personal” rights over their works, i.e., the right to protect the work or the right to be recognised as the author of his/her works. Personal rights cannot be assigned or transferred, even with the author’s consent. Personal rights cannot be waived and do not lapse with the passing of time.
Economic rights can be assigned by the author or the copyright owner.
Copyright does not require an official registration. Protection is automatic and acquired immediately after the work completion. However, it is possible and sometimes advisable to register at Inspeção-Geral das Atividades Culturais (IGAC) to prove the authorship of the work.
National laws ensure protection within the country. International treaties and conventions (such as the Berne Convention) extend copyright protection beyond Portuguese borders.
Copyright holders may delegate the managing right of the work to a share-divided, collective management corporation, such as the Portuguese Authors’ Association (Sociedade Portuguesa de Autores) and the Portuguese Software Producers’ Association (ASSOFT).
Generally, copyright lasts 70 years after the author’s death, even if the original work was published or came up after its author’s death. When the copyright’s term expires, the work enters the public domain and can be used freely. Public domain does not affect moral rights, which are protected indefinitely.
Databases are protected as copyright when they are considered intellectual creations as defined in Decree-Law 122/2000 of July 4, that implemented Directive 96/9/EC on the legal protection of databases. When a database is not protected by copyrights, its owner benefits from a special protection when there has been a substantial investment in obtaining, verifying or presenting the database contents. The exclusivity lasts for 15 years starting from the end of the calendar year in which the database was created.
In Portugal, Decree-Law 252/94 of 20 October, which transposed Directive 91/250/EEC, establishes the rules applicable to the legal protection of software (computer programs), through the remission of this protection to the copyright regime. Furthermore, since 1991, we can count on the Portuguese Software Association (ASSOFT), which is an entity for the collective management of copyright and related rights regarding Software products.
To be protected, computer programs cannot be the copied from other computer program(s). Software gets the same legal protection as literary works. This means that the software owner has the powers that come with the economic exploitation of his/her/its work, including the right to permanent or temporary software reproduction by any means and in any form, the power to modify it in any way or make copies for commercial distribution.
The owner of software may put into circulation originals or copies of the program and has the right to lease the copies. The copyright owner can register the program at the literary property register as well.
A software created by a company is presumed to be collective work. When a software is created by an employee during the performance of his/her duties or under the instructions of the employer, the program belongs to the employer, unless otherwise is explicitly stipulated.
A person that has the right to use a copy of software can use the program for various purposes, such as creating a back-up copy in connection with such use or study and test the program functioning.
The licensee or another person with the right to use the program or acting on behalf of a person authorised to do so, can decompile parts of a program to ensure the interoperability of that software with other programs.
The unauthorised economic exploitation of software by an individual or legal person might be considered a violation of the Software Protection Law and is considered a criminal offence under the Cybercrime Law.
Personal rights, which belong to the author of a software, give him/her the right of mentioning the software’s name and the right to claim authorship.
Patents ensure exclusive use and the right to prevent others from manufacturing, offering or storing an invention that has industrial use, without the owner’s consent, even if the invention is applied to a product consisting of or containing biological material or to a process that creates, treats or uses biological material. Inventions may include products, processes and new processes for obtaining already known products and substances.
The invention must be a novelty, destined to industrial use and cannot be obvious to a person with average knowledge in the technical field in question.
Discoveries, scientific theories and mathematical methods, materials or substances existing in nature, nuclear materials, aesthetic creations; schemes, rules and methods for intellectual pursuits, games or businesses, and information presentations are not patentable.
Inventions contrary to law, public policy, public health and best practices cannot be patented.
The duration of a patent is 20 years following the application date. The patent validity can be shortened if the annual fees are not paid. For pharmaceutical and plant protection products, it is possible to apply for a supplementary protection certificate, which extends the patent protection for an additional five years.
The patentholder must exploit the patented invention. The exploitation has to begin within four years counting from the application date or three years counting from the date of the patent grant, whichever is longer. Patents may be licensed or sold.
Portuguese patents must be registered at the National Institute of Industrial Property (Instituto Nacional da Propriedade Industrial, INPI).
European patents, which are valid in the European Patent Convention contracting States, must be registered at the European Patent Office or at INPI. Patents last for 20 years. European patents are valid in the 26 European Union countries (except for Spain and Croatia), without the need for national verification and the payment of any fees in the contracting countries. The European Patent Office is responsible for granting European patents. The application must be in one of its official languages: English, French or German.
The World Intellectual Property Organisation is responsible for granting and protecting international patents in more than 150 countries. The applicant must be a national or resident of a Patent Cooperation Treaty contracting State. National laws govern the registration process in each country.
Utility models are product or procedure inventions with industrial applicability and cannot cover biological materials. Utility models have a simplified approval procedure and are subject to examination by INPI, the entity responsible for granting and registering industrial property rights in Portugal.
Utility models are subject to the same object constraints as patents. Utility models rights last six years from the application date. The protection period can be extended for a maximum of 10 years from the day of application.
The fees charged for the registration and maintenance of utility models are generally lower than those charged for the registration and maintenance of patents.
It is also possible to protect an invention without gathering all the documentation required for that purpose. Portuguese law allows filing a provisional patent application (Pedido Provisório de Patente, or PPP) by simply submitting a document describing the invention in detail. After that, there is a period of 12 months to convert the provisional application into a definitive patent application.
It is possible to apply online for patent, utility model registration and a provisional patent application at https://inpi.justica.gov.pt/.
Owners of designs of the product’s shape, lines, contour, colours, textures or materials have the exclusive right to use it and to prevent its use by unauthorized third parties.
To be protected designs do not need to be entirely a novelty but must include at least a new feature or layout of already used elements but presented differently.
Rights over registered designs last five years following the application date and can be renewed for consecutive equal periods of time up to a maximum of 25 years. When registered, the design is protected by copyrights since its creation date.
Registration is made at INPI or at the European Union Intellectual Property Office. The application procedure is simple, and it is required to pay a single set of fees. Registration covers all Member States.
However, once registered, a design cannot be altered, not even by the owner. It can only be enlarged or reduced.
The registration of alterations to the essential characteristics of a design, provided that they are new and unique, requires the registration of a new design.
Unregistered Community designs are automatically protected for a period of three years following the design’s publication within the EU. Protection allows the owner to prevent commercial use of the design by third parties.
The World Intellectual Property Organisation’s international registration means the acknowledgement of intellectual property rights in 65 countries. The applicant must be a national or live or have an established business in an EU country. Nevertheless, national laws regulate the registration in each country.
Trademarks are distinguishing marks used in trade to identify products and services. Trademarks grant their holders a 10-year exclusive right of use, that is partially or fully renewable, for equal periods of time, as well as the right to represent the trademark graphically -through words, names of persons, drawings, letters, numbers and sounds, the form of the product or respective packaging –, distinguishing the products and services. Trademarks may also consist of advertising slogans for products or services.
Marks must have distinctive character and be represented in a way that third parties can determine clearly and precisely the protected object. Marks representing the usual name of a product or service or the ones that have descriptive elements are not accepted as trademarks.
The trademark should be registered at the INPI and its protection is limited to the national territory.
A trademark protection in the EU can be obtained by registration of an EU trademark at the European Union Intellectual Property Office. The registration covers the territory of all Member States and any natural or legal entity from any country in the world may apply for the registration.
International trademark registration enables protection in more than 100 countries by filling an application. The applicant must have an established business, be a national or live in a member country part of the Madrid System (International Trademark Registration Treaty). However, national laws govern the registration in each country. Therefore, the same application may be accepted in some countries and rejected in others.
Once the trademark products are made available in the European Economic Area by the owner, or with his/her consent, the owner's rights are considered expired. The trademark holder cannot disallow its use on the products. Furthermore, the trademark has to be actually used for five consecutive years, otherwise the registration expires.
In Portugal, is possible to register trademarks online at https://inpi.justica.gov.pt/.
Well-known and prestigious trademarks have a special degree of protection, even if they have not been registered.
A trademark application will be refused not only if it is a reproduction or imitation of a Portuguese well-known trademark, but also if it is applied to identical or similar products or services that might be mistaken for a well-known trademark.
A trademark application will be refused if it is identical or similar to another previous well-known trademark in Portugal or in the European Union, when it takes an unfair advantage of the distinctive character or prestige of another trademark or if it could jeopardize that trademark, even if associated with different products or services.
Any confidential business information that provides competitive advantage can be considered a trade secret.
Trade secrets can include know-how, technical knowledge (potentially patentable or not) or business and commercial data such as lists of customers, business plans and manufacturing processes.
Disclosure, acquisition or use of the competitor’s trade secrets, without his/her/its consent, is considered illegal if the information: (i) is secret, meaning that it is not generally known or easily accessible, (ii) has commercial value because of its secrecy and (iii) has been subject to considerable diligence by the person responsible for the information control in order to keep it secret.
It is also unlawful to disclose or use a trade secret when the recipient of information knew or should have known, when first hearing about it that such secret had been obtained directly or indirectly from another person who was using or disclosing it illegally.
It is lawful to access a trade secret when that results from an independent discovery, from an employees’ rightful access to the information in accordance with accepted practices or the law. It is also legal to study, disassembly or test a product or object that has been made available to the public or when such access complies with honest commercial practices.
Whenever there is a breach or well-founded fear that others may cause serious damage to the trade secret, the court may, at the request of the interested party, order the appropriate precautionary measures.
In the event of a trade secret breach, the court decision can order the offender to refrain from using or disclosing the trade secret and prohibit the offender to produce, offer, place on the market, import, export or store the product of such secret.
When unfair competition, abuse of right and other legal rules protecting business secrets do not apply or do not offer sufficient protection, it is advisable to enter into a non-disclosure agreement before exchanging confidential and sensitive information to business partners, shareholders, employees, suppliers and customers.
Unlike for patents or trademarks, protection is not time-limited. Furthermore, this protection does not involve any formalities with competent authorities and there is no registration fee, which means that its effect is immediate.
Relevant legislation
Copyright and Related Rights Code [Portuguese Only]
Industrial Property Code [Portuguese Only]
Industrial Property Table of Fees [Portuguese Only]
Legal Protection of Computer Programs [Portuguese Only]
Forms
Designs and Models Registration Request [Portuguese Only]
Patent and Utility Model Registration Request [Portuguese Only]
Logos and trademarks Registration Request [Portuguese Only]
Additional Protection Certificate Request [Portuguese Only]
Publications
«Why your IP is in safe hands in Portugal» (2019)
«Intelectual Property for Companies» (2015) [Portuguese only]
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