1.2. Outline of Portugal’s Legal Intellectual Property regime
According to the CDADC, a copyright is a subjective right that grants its holder the power to exclusively benefit from or use a work. The concept of “work” includes original intellectual creations in the literary, artistic and scientific fields, i.e. creations that have an aesthetic or artistic value that makes them unique in the sense that they differentiate themselves from trivial accomplishments.
The subject matter protected by copyright is not the ideas conveyed or contained in the work, but only the means of expressing these ideas. For example, the copyright for a book relates only to the writing style (word choices and combinations), and not the ideas contained in the book, which may be freely reproduced by third parties, provided that this is done so through a different way of writing (means of expression).
In addition to protecting works through copyrights, the CDADC also provides for the protection of related rights involving the work of performers, audio and video producers and broadcasting organizations.
Copyrights are generally acquired regardless of registration, filing or other formalities. However, it is possible to register works, namely software, at the IGAC. The advantage of this registration is that it demonstrates more clearly that the registered right belongs to the person identified as the work’s author.
Note that software is considered an intellectual creation, and therefore may be protected by copyright as long as it is creative in nature.
Registrations with the IGAC may be made in person or via the IGAC’s website www.igac.pt. The registration has a fixed cost of €29.71 per work.
1.2.3. Industrial Property
Patents, trademarks and designs are the three most important categories of industrial property rights. The acquisition of these rights is subject to their filing and registration with the INPI.
A trademark registration grants its owner the exclusive right to use the registered sign in association with certain categories of products/services, and to prevent third parties from using an identical or similar sign to identify the same or related products or services.
When filing and registering a trademark, the following should be noted:
· The sign must be distinctive, i.e. it must be original or creative enough for consumers to link the trademark to the company responsible for production or a certain kind of service;
· The sign must be distinct from any other previously registered;
· The sign can be registered without being used at the time the application is filed. However, a trademark must be used for at least five years after the registration date; otherwise, it will be subject to cancellation based on lack of use. Such cancellation requests can be made by any third party by simply filing a petition with the INPI, and will be granted if no evidence of use is submitted;
· Trademarks can be filed at the INPI by mail, or online at its website (www.marcasepatentes.pt), subject to a minimum official fee of €123.36 if filed electronically (the number of services and goods related to the trademark will also determine the amount of the final official fee to be paid). If the application is not filed electronically, the official fee will be doubled;
· After the trademark has been granted, it will remain valid for 10 years, subject to consecutive renewal with the payment of a renewal fee.
Also noteworthy in the area of trademarks is the “Mark on Time” option, which allows any entity to immediately acquire previously-registered trademarks from an available list when setting up a business online, or at the website www.portaldaempresa.pt.
A patent registration grants its owner the right to use a certain invention, i.e. a new solution that solves a certain technical problem. Patents can be related to products (a new solution) or processes (process that obtain a better or new result).
In order for an invention to be approved for registration in Portugal, it must:
· Be new, i.e. it must be a solution that is not known anywhere in the world;
· Entail a high technical creative effort, and not a “clear” solution for an average expert from the invention’s technical field;
· Be able to be applied to any kind of industry or agriculture.
Patent registrations are valid for 20 years from the application date, subject to annual fees.
Since Portugal is a party to the European Patent Convention Treaty, any European patent can be designated and validated in Portugal. However, the Unitary Patent will soon be entering into force, allowing a European Patent to be converted into a single right, valid in all countries who signed this convention, with no need for national validation.
In Portugal, provisional patent applications are allowed, which have the advantage of filing a given invention using a very simple application. The regular application must be submitted, however, within 12 months of filing of the provisional application.
Note that, in Portugal, software is subject to protection through copyright and not patent law, unless the software in question is part of a process subject to patent protection per se.
Finally, inventions lacking a highly technical or creative step, but instead simply creating a mere technical advantage, may be protected by Utility Models. This kind of IP right grants protection similar to a patent right, but is only valid for 6 years, subject to two renewals of two years each.
This kind of right allows a company to protect the appearance of its products, namely lines, contours, colours, shapes, textures and/or materials of the product itself and/or ornamentation.
A product’s appearance can be protected through a design registration in the following cases:
· The design is new, i.e. there is no other similar product (with the exception of small details only);
· The design is likely to create a distinct overall impression compared to other previously-registered designs.
Design registrations are valid for 5 years, subject to consecutive 5-year renewals up to a maximum of 25 years, with payment of applicable renewal fees.