- PART I GENERAL PART
- PART II INDUSTRIAL PROPERTY LEGAL SYSTEMS
- CHAPTER I INVENTIONS
- CHAPTER II UTILITY MODELS
- CHAPTER III INDUSTRIAL MODELS AND DESIGNS
- CHAPTER IV TRADEMARKS
- CHAPTER V AWARDS
- CHAPTER VI NAMES AND EMBLEMS OF ESTABLISHMENT
- CHAPTER VII LOGOS
- CHAPTER VIII APPELLATIONS OF ORIGIN AND GEOGRAPHICAL INDICATIONS
- PART III INFRINGEMENTS
- PART IV FEES
- PART V INDUSTRIAL PROPERTY BULLETIN
Legislative Texts
Although it is more than half a century since the publication of the Portuguese Industrial Property Code, approved by Decree nr 30 679 of 24th August 1940 in pursuance of the fundamental provisions of Law nr 1972 of 21st June 1938, it can be said that it still efficiently meets the most important national and international needs in the field of the protection of industrial property.
However, technological development and the need to adapt to new institutional and economic structures have led, over the years, to the publication of various statutes making modifications to that Code.
Over the last few years, mainly due to the adhesion of Portugal to the European Community and the extension thereof to form the European Economic Block, and in the wake of great technological development and an increase in commercial activity, there has been a need to make more in-depth modifications, particularly in the field of patents and trademarks, in order to meet Community guidelines and international harmonisation regulations and to make Portuguese legislation in compliance with the principles of the free movement of goods and the level of industrial property protection achieved within the Community.
Furthermore, the signing of the Agreement on Trade-Related Aspects of Intellectual Property Rights [TRIPS] under the auspices of the GATT, the recent joining of Portugal to the Munich Convention on the European Patent and the Patent Cooperation Treaty [PCT], and the need to incorporate the Directive nr 89/104/EEC of 21st December 1988 into Portuguese law, have highlighted the need to make changes to internal legislation. The present statute is drawn up to this effect, notwithstanding the immediate creation by the Portuguese Government of a committee of specialists to follow up its application and propose any necessary amendments.
Thus:
In pursuance of the legislative authorisation granted by Law nr 11/94 of 11th May 1994, and within the provisions of article 201, number 1, paragraph b] of the Portuguese Constitution, the Government decrees the following:
ARTICLE 1
The Industrial Property Code that is published together with this statute and is a component part thereof is hereby approved.
ARTICLE 2
The competence of the Court of the District of Lisbon shall be maintained on exactly the provisions stipulated in article 203 of the Industrial Property Code approved by Decree nr 30 679 of 24th August 1940.
ARTICLE 3
Patents that were applied for before the entry into force of this statute shall retain the term granted under article 7 of the Industrial Property Code approved by Decree nr 30 679 of 24th August 1940.
ARTICLE 4
Legislative Texts Utility models granted before the entry into force of this statute shall lapse 15 years after the date on which the first annuity becomes due following such entry into force. Utility model applications filed before the entry into force of this statute and granted afterwards shall lapse 15 years after the date of grant. ARTICLE 5 Industrial models and designs granted before the entry into force of this statute shall lapse 25 years after the date on which the first annuity becomes due following such entry into force. Industrial model and design applications filed before the entry into force of this statute and granted afterwards shall lapse 25 years after the date of grant. ARTICLE 6
Registrations granted before the entry into force of this statute shall maintain the term granted under previous legislation until the first renewal after this date, and future renewals shall be made for 20-year periods.
ARTICLE 7 Requests for lapse actions against patents, models, designs or registrations that have not been decided by the date of the entry into force of this statute shall be subject to the legislation in force on the date of the application. In the case of pending trademark applications, the one-year period mentioned in article 183, number 5 , shall be computed from the date of the entry into force of this statute. ARTICLE 8
The following are revoked: a] Law nr. 1972 of 21st June 1938; b] Decree nr. 30 679 of 24th August 1940; c] Decree-Law nr. 34 193 of 11th December 1944; d] Decree-Law nr. 96/72 of 20th March 1972; e] Decree-Law nr. 32174 of 2nd February 1974; f] Decree-Law nr. 176/80 of 30th May 1980; g] Decree-Law nr. 285/83 of 21st June 1983; h] Decree-Law nr. 408/83 of 21st November 1983; i] Decree-Law nr. 27/84 of 18th January 1984; j] Decree-Law nr. 40187 of 27th January 1987; l] Decree-Law nr. 332/89 of 27th September 1989. ARTICLE 9
The Industrial Property Code shall enter into force on 1st June 1995.
Seen and approved by the Council of Ministers, 10th November 1994. -Anibal António Cavaco Silva—Âlvaro José Brilhante Laborinho Lúcio—Luís Fernando Mira Amaral—Fernando Manuel Barbosa Faria de Oliveira.
Legislative Texts
Enacted on 28th December 1994.
To be published.
The President of the Republic, MÂRIO SOARES.
Countersigned on 2nd January 1995.
The Prime Minister, Anibal António Cavaco Silva.
INDUSTRIAL PROPERTY CODE
ARTICLE 1 [Social function of industrial property]
Industrial Property has the social function of guaranteeing fair competition by conferring the private rights regulated in this Code, as well as to prevent unfair competition.
ARTICLE 2 [Scope of industrial property]
Industrial property covers industry and commerce as such, the fishing, agricultural, forestry, cattle and extractive industries and any natural or manufactured products and services.
ARTICLE 3 [Personal scope of application] The present Code shall be applicable to individual persons and corporate bodies being Portuguese or nationals of the Member States of the International Union for the Protection of Industrial Property, hereinafter referred to as the Union, in accordance with the terms of the Paris Convention of 20th March 1883 and revisions thereof, irrespective of residence or establishment, with the exception of the special provisions as to competence and procedure. Nationals of any country who are resident or have an industrial or commercial establishment, in fact and not as a matter of form, in the territory of a Member State of the Union, shall be considered as nationals of the Member States. With regard to any other foreign nationals, the provisions of Conventions between Portugal and the respective countries shall be observed and, in the absence thereof, the system of reciprocity shall apply. References made in this Code to the Union or Paris Convention for the Protection of Industrial Property shall cover the relevant provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights [TRIPS]. ARTICLE 4 [System applicable to cases of more than one proprietor]
In cases of more than one proprietor of industrial property rights, the relationship between them shall be governed, unless otherwise agreed, by the provisions of civil law relating to joint property.
ARTICLE 5 [Effects of the registration]
Legislative Texts Notwithstanding the provisions of the following number, the grant of industrial property rights shall imply only legal presumption of the requirements of grant. An award registration shall guarantee the veracity and authenticity of the titles by which they were conferred and shall assure the proprietor of his indeñnite property and exclusive use thereof. Trademark, appellation of origin and name and emblem of establishment registrations shall constitute grounds for the refusal or annulment of confusingly similar company names or trade names for which an application for incorporation is filed after the respective applications for registration. Annulment actions brought under the provisions of the preceding number may only be filed within ten years after the incorporation of the company, unless such actions are filed by the Portuguese Public Prosecutor. The rights conferred by patents, models, designs and registrations shall cover all the Portuguese territory. ARTICLE 6 [Proof of industrial property rights] Proof of the industrial property rights referred to in this statute shall be given by means of the patent, model, design and registration certificates corresponding to the various categories governed herein. The holders of the various rights may have drawn up certified copies identical in content to the patent, model, design or registration certificate, in order to prove these rights in court or before any other official bodies. 3. Certified copies of applications shall also be drawn up upon request of the applicant. ARTICLE 7 [Supply of certificates of grant] Certificates of grant shall not be supplied to the interested parties before one month period after the expiration of the time limit for appeal or, if an appeal is filed, after the final court decision has been given. Certificates shall be supplied to the proprietor or his legal representative against issuance of a receipt. ARTICLE 8 [Contents of certificates] The certificates mentioned in the previous articles shall contain the elements necessary for full identification of the right that they attest. Specimen certificates shall be approved by a decision of the Minister for the area of industry. ARTICLE 9 [Calculation of time limits]
1. Periods established in this statute shall be uninterrupted. Holders of the various rights shall be reminded punctually and duly in advance of the time limits for the payment of annuities and renewal and revalidation fees. If notification is not provided this cannot be cited as justification for non-payment of fees within the time limits prescribed.
Legislative Texts
ARTICLE 10 [Entitlement to file and take action]
1. Persons entitled to take legal action before the Portuguese Institute of Industrial Property shall be those who have an interest in the acts mentioned in this statute or their legal representatives.
2. Action can only be taken and the prosecution of proceedings handled by:
a] The actual interested party or the holder of the right, if established or resident in Portugal;
b] Official industrial property agents;
c] Appointed lawyers. If, during the prosecution of a particular act, the regulations governing legal representation stipulated in this article are infringed, the represented party shall be directly notified to fulfil the legal formalities required within the non-extendible period of one month, without loss of the priorities to which he is entitled; failure to do so shall mean that such act shall be deemed as null and void. Official agents and appointed lawyers representing parties shall always have access to the file. ARTICLE 11 [Priority of filing] Except in the cases provided for in this statute, patents, models, designs and registrations shall be granted to the first party having filed a regular application with the documents thereof. If applications are sent by mail, precedence shall be computed from the date on which the mail was registered or the date of the postmark. If two applications relating to the same right are received simultaneously or claim the same priority, no action shall be taken until the interested parties have settled the question of priority either by agreement or at the competent civil court. If the application comes from abroad, the interested party shall be notified to appoint a legal representative within one month, in accordance with number 2, paragraph b] or c] of the preceding article, if a representative has not already been appointed. The application shall be refused if the notification referred to in the preceding number is not complied with. If the application is not initially accompanied by all the documents required, priority shall be computed from the day and time that the last outstanding document is filed. If, due to amendments, the invention, model, design, trademark, name or emblem is to be considered as being noticeably different from the one first published in the Portuguese Industrial Property Bulletin, a further notice shall be published for opposition purposes and the priority of the amendments shall be computed from the date on which the amendment was made. If the examination reveals that the application for the patent, model, design or registration was not correctly drawn up, the applicant shall be notified to file the application in accordance with the category stipulated.
Legislative Texts In the event of the preceding number the application shall be republished in the Portuguese Industrial Property Bulletin and the priorities to which the applicant is entitled shall not be affected. Until a decision is given, other amendments may be authorised, such as in respect of the name or head office of the applicant, provided that there are sufficient grounds for such amendments and they are duly published. ARTICLE 12 [Proof of the priority right] The Portuguese Institute of Industrial Property may request parties claiming the right of priority to file, within a reasonable period of time, a duly certified copy, as well as certification of the date of filing and, if necessary, a translation. This may be requested at any time, but the applicant shall not be required to fulfil this formality before three months after the date on which the application was filed in Portugal. The copy of the application shall be exempt from legalisation and may be filed free of charge within the time limit prescribed in the preceding paragraph. ARTICLE 13 [Loss of the priority right]
Failure to comply with the time limit of the preceding provisions shall lead to loss of the right of priority claimed.
ARTICLE 14 [Rectification of deficiencies]
If any deficiencies are revealed before publication of the notice in the Portuguese Industrial Property Bulletin, the applicant shall be notified thereof by this means, in order to effect the necessary rectifications.
ARTICLE 15 [Notarisation of signatures]
Signatures on documents not filed by an official agent or appointed lawyer shall always be notarised in accordance with legal stipulations.
ARTICLE 16 [Notifications] If oppositions are filed, the applicant shall be notified immediately by the Portuguese Institute of Industrial Property. Identical notification shall be made in respect of the filing of statements, lapse actions and other similar briefs. Notice of oppositions, replies and lapse actions may be published in the Portuguese Industrial Property Bulletin for information purposes. ARTICLE 17 [Time limit to reply] Applicants may reply to oppositions or similar briefs within two months after the date of notification thereof. 2. If necessary, additional statements may be filed for further clarification. If requested during the time limit prescribed in number 1 and for justifiable reasons, an additional period of one month may be granted for the filing of the briefs mentioned therein. ARTICLE 18 [Copies of briefs filed]
Legislative Texts
1. Oppositions and briefs shall be accompanied by a copy thereof.
2. The copies mentioned in the preceding number shall be supplied to the opposing party by the Portuguese Institute of Industrial Property.
ARTICLE 19 [Subsequent formalities]
On the expiry of the time limit prescribed in article 17 , if no reply has been filed by the party which is entitled to exercise this right, the allegations made by the parties shall be examined and assessed, after which an opinion shall be given on the file and it shall be submitted for decision.
ARTICLE 20 [Inspections] Before the information mentioned in the preceding article is provided, the inspection of any industrial establishment or other premises may be requested in order to back up or clarify the allegations made by the parties; the request shall not be accepted without a hearing of the other party. The request shall be well founded. Any costs involved in the inspection shall be borne by the party that requested it. The party that requested the inspection may freely withdraw it before it is begun. In the event of withdrawal in due time or refusal of the request for inspection, any expenses incurred shall be refunded upon the request of the interested party. ARTICLE 21 [Official inspections]
An inspection may also be requested by the Portuguese Institute of Industrial Property of its own motion if it is found to be necessary in order to fully clarify the matter.
ARTICLE 22 [Filing of documents]
1. Documents shall be filed with the briefs containing the facts to which they refer.
2. Documents may be filed in accordance with the following article if it is proved to have been impossible to obtain them in due time.
Ministry of Industry and Energy Decree-Law nr 16/95 of 24th January 1995
PART I GENERAL PART
CHAPTER I GENERAL PROVISIONS
CHAPTER II ADMINISTRATIVE PROCEDURE