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), which 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 Intellectual Property 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 her/his 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 owners 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).

Copyright lasts 70 years after the author’s death, even if the original work was published or came up after the author’s death. When the copyright’s term expires, the work enters the public domain and can be used freely. Falling in the public domain does not affect the 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, which implemented Directive 96/9/EC on the legal protection of databases. When a database is not protected by copyrights, its owner benefits from 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.

The Portuguese Intellectual Property Code (Código de Direito de Autor) ensures protection against civil, criminal, and administrative offenses concerning copyright. Regarding civil protection, the Intellectual Property Court has jurisdiction, and the owners of intellectual property rights can take legal action to:

• Recognize copyright in the event of a dispute with third parties;
• Put an end to the illegitimate use by third parties of the respective rights, as well as demand compensation for damages and profits gained by the infringer;
• Appeal decisions regarding the registration of literary and artistic works by the General Inspection of Cultural Activities; and
• Seek protective measures to prevent imminent infringements or to prohibit ongoing infringements.

In criminal matters, the law permits the court to order the seizure of the movable and immovable property of the alleged offender, including their bank account balances. The court may also order access to banking or commercial data, and information concerning the offender.

Without prejudice to the protective measures set out in procedural law, the intellectual property rights owner may request from the police and administrative authorities of the location where the rights are violated, the immediate suspension of the performance, recitation, execution, or any other form of exhibition of the protected work occurring without proper authorization, as well as the seizure of the proceeds of the infringing practice.

The criminal protection of copyright, which falls under the jurisdiction of the criminal courts, addresses several practices as criminal offenses:

• Misuse: using a work without the author's authorization.
• Counterfeiting: presenting a work as one's own creation.
• Violation of moral rights: infringement of the right to paternity and the right to the genuineness or integrity of the work.
• Use of a counterfeit or usurped work: commercialization or distribution to the public, in any form, of a usurped or counterfeit work.

Except for violations of moral rights, other offenses are public offenses, meaning that criminal proceedings may be started ex officio and do not require a complaint from the owner of the intellectual property rights.

Regarding administrative offenses, certain practices are classified as serious economic offenses (Article 205 of the Intellectual Property Code):

• Failure of importers, manufacturers, and sellers of material supports for phonographic and videographic works to report quantities imported, manufactured, and sold.
• Failure by manufacturers and duplicators of phonograms and videograms to report quantities they press or duplicate.
• Unauthorised communication to the public of previously commercially released phonograms and performances incorporated therein, without the authorization of the respective author, producer, or their representatives, either via public performance or audiovisual broadcasting.
• Unauthorized communication to the public of videograms through television broadcasts or retransmissions, as well as works and performances incorporated therein, without the necessary authorizations.

Failure to properly identify the author of the work by name, pseudonym, or other identifying signs adopted by them, or the works the adaptation is based on, constitutes a minor economic offense.

The General Inspection of Cultural Activities is responsible for processing administrative offenses, and the respective inspector-general is charged with imposing fines (Article 206 of the Intellectual Property Code). The Legal Framework for Economic Administrative Offenses (Regime Jurídico das Contraordenações Económicas) applies to the sanctioning framework.

Accessory sanctions may also be applied, including (Article 210-J of the Intellectual Property Code):

•  Forfeiture of seized assets in favour of the State.
• Temporary ban on carrying out an activity.
• Temporary deprivation of the offender's right to participate in fairs or markets.

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 for 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 model 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 patents, register utility models and apply for provisional patents at https://inpi.justica.gov.pt/.

The Industrial Property Code guarantees civil, criminal and administrative offence protection for intellectual property rights.

About civil protection, the Intellectual Property Court also has jurisdiction. As an alternative to resorting to judicial means, the parties can resort to an arbitration court if an arbitration agreement has been signed.

Actions can be brought to:

• Appeal against decisions of the National Institute of Intellectual Property granting or refusing any industrial property right, as well as any other acts affecting industrial property rights;
• Put an end to the illegitimate use by third parties of the respective right, as well as compensation for damages and the infringer's profits; and
• Request protective measures to inhibit imminent infringements or prohibit the continuation of ongoing infringements.

In the case of commercial offences, the law allows the court to order the seizure of the alleged offender's movable and immovable property, including their bank account balances, and the Judge can order the communication of or access to banking or commercial data and information concerning the offender.

The following practices are deemed criminal offences:

• Manufacture of artefacts or products, as well as the use of processes and consequent distribution, in violation of the exclusive patent, utility model or topography of semiconductor products;
• Reproduction or imitation, as well as the exploitation and consequent importation or distribution of registered designs;
• Infringement of name and insignia rights;
• Infringement of the exclusive right to a logo;
• Reproduction or imitation of a designation of origin or geographical indication;
• Obtaining patents, utility models and design registrations in bad faith;
• Registration obtained or maintained through abuse of rights; and
• Registration of a non-existent act or one carried out to conceal the truth.

All these offences are semi-public crimes, i.e. they depend on the holder of the right in question lodging a complaint.

As for administrative offences, very serious economic offences include unfair competition and violation of a protected trade secret. The range of serious economic offences is more extensive and includes:

• Unlawful invocation or use of a reward;
• Preparatory acts which include manufacturing, importing, exporting, acquiring or keeping, for oneself or others, signs constituting names, insignia, logos, designations of origin or registered geographical indications;
• Use of illicit trademarks;
• Improper use of a name, insignia or logo; and
• Invocation or improper use of private rights.

The penalty framework is regulated in the Legal Framework for Economic Administrative Offences.

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]

Important notice

This library includes standard forms, documents, copies of statutes of law and reports from national and international organisations and other resources intended for general informational and educational purposes only.

By using this library, you agree (i) that nothing in this library constitute or substitute legal or business advice, (ii) that the availability, transmission, receipt or use of this library is not intended and does not create an attorney-client relationship and (iii) to use the documents available in this site in compliance with all applicable laws. You should make sure that this library are not or have not become out-of-date by supervening laws or regulations or other events.

We are used to working on all aspects of intellectual property law. We act regularly in domestic and cross-border transactions involviong IP rights, including technology transfers, mergers and acquisitions, financings and foreign investments.

We can assist you in all aspects related to IP and technology, including:

• Negotiating IP licensing agreements and technology transfer agreeemnts
• Registration of trademarks
• Preparing and submitting patent applications
• Protecting copyrights and other IP rights
• Handling IP disputes

If you have any question or wish us to provide a budget, please contact us to: whyportugal@macedovitorino.com

For more information on our practices and expertise please go to www.macedovitorino.com/en/expertise