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Intellectual Property: How to protect your IP rights

Taking as a stating point the Portuguese Legal Framework, within the scope of Intellectual Property, ASA Advogados provides assistance in support of IP rights, including registration, protection and strategy, on trademarks, patents, logos, designs and other commercial signs in Portugal and within European Union, providing also representation in legal disputes and filing criminal complaints concerning IP infringements.





1. TRADEMARKS

Trademarks may consist of a sign or set of signs capable of being represented graphically, namely words, including names of persons, designs, letters, numbers, sounds and the shape of the product or its packaging, provided that such signs can distinguish the products or services of in commerce from other products or services. Please note that trademarks may also consist of advertising slogans for products or services.


Trademark registration grants its owner the exclusive right to use such sign with certain categories of products and/or services. Additionally, it provides the legal tools required to prevent third parties from using an identical or similar sign for a period of 10 years, which may be renewed for equal periods.


Anyone who has a legitimate interest in protection may apply for registration, which is subject to a minimum fee of € 127,50 – that may vary taking into consideration, for instance, the number of services and products related to the trademark.


The application is later published and, from that date on, there is a period of two months for any possible oppositions from third parties. If there is an opposition, the grounds of such will be evaluated – however we must highlight that the applicant may request for the claimant to present proof of serious use of the trademark in the past consecutive five years or to justify that lack of use.


Afterwards, if there are no oppositions filed, or such are deemed unfounded, the INPI scrutinizes the application and, if no reasons for refusal have been detected, namely if it is identical or similar to another previous trademark, the registration is granted.


Finally, trademarks can also be subject to protection both in EU and internationally wise. In the case of a registration of an European trademark, all countries from the EU automatically are covered by such registry.


2. PATENTS

Any new inventions involving an inventive step, i.e., a new solution for a technical problem, may be subject to protection if they are capable of industrial application. In fact, patents can be related to products or processes in all fields of technology, even for already known products, substances or compositions, provided that they consist of novelties. Nonetheless, there are some inventions that are not able to be patented such as inventions contrary to the law, public policy or public health.


A patent registration grants its owner the exclusive use of a certain invention, namely to producing or marketing it or even exploiting it through licenses, and the right to prevent third parties from manufacturing, offering or storing it, without the owner’s consent for a period of 20 years, subject to fees – usually the consent for third parties shapes up as royalties.


As for the procedure for registering a patent, the applicant must file, among others, a description of the object of the invention, the drawings, an abstract of the invention and the patent claims of what is new and characterizes the invention. Please note that is possible to protect an invention prior to gathering all the documentation required, ensuring its priority – in fact provisional patent applications are allowed, but the regular application must be submitted within 12 months. The application is subject to a minimum fee of € 107,30.


After being dully submitted, a formal evaluation takes place within 2 months to validate the minimum features of the application. Later on, there is an examination of the invention, which conclusions will set the course for the next procedures and the final decision regarding the patent.


Furthermore, patents can also be subject to protection both in EU and internationally wise – applications for European patents may not only be filed at the European Patent Office (in English, French or German) but also at the INPI - in which case the applicant shall have one month from the date of the request to submit the Portuguese the translation of the description, claims and abstract, as well as a copy of the drawings.


Finally, inventions lacking a highly technical or creative step, but instead simply creating a mere technical advantage, may be protected by utility models – however they cannot cover biological materials and they benefit from a more a simplified approval procedure. This kind of IP right grants protection similar to a patent right, but is only valid for 6 years, subject to two renewals of 2 years each.


3. CRIMINAL LAW

In a highly competitive and globalized market, in order to avoid having unique ideas, products, or services copied or used without permission, the Portuguese Law establishes severe legal consequences. In fact, there are several different kinds of crimes in force in our legal regime with the purpose of punishing the perpetrators, which could be sentenced with penalties from fines to 3 years prison.







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