PORTUGAL Law and Practice Contributed by: Vítor Palmela Fidalgo, João Pereira Cabral and Diogo Antunes, Inventa
to the filing date of a cancellation application or to the relevant date in a litigious proceeding. This only applies after the registration has been in force for five years. Genuine use implies the use of the sign as a trade mark, and it must be more than a mere token, symbolic or solely aimed at maintaining registration. It also must concern the sign as registered (or with immaterial modifications), in relation to the goods and/ or services covered by the registration, and occur in the relevant territory. 2.5 Notices and Symbols According to the Portuguese Industrial Property Code, a registered trade mark can be used with the indica - tion “Registered Trademark”, the initials “M. R.”, or simply ®. There are no consequences for not using these words and symbols. However, using them in relation to an unregistered trade mark is illegal. 2.6 Related Rights Trade marks can be validly granted if they do not infringe personal image and name rights, or copyright. If a trade mark consists of a name or of an image of a person, it can only be granted if authorised by that person. Similarly, a trade mark application shall be refused if it consists of a protected work. Trade marks can be protected by copyright if they are an original “intellectual creation”. 3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works Eligible Works for Copyright Protection Under Portuguese law, copyright protection extends to all original intellectual creations in the literary, sci - entific, and artistic domains, irrespective of their form, genre, merit, or purpose. This protection is established by the Portuguese Cop - yright Code ( Código do Direito de Autor e dos Direitos Conexos ), approved by Decree-Law No 63/85 of 14 March 1985, as amended. The categories of protected
works are expressly listed in Article 1 (1) and further elaborated in Article 2 of the Code. The main categories of works eligible for copyright protection include: • literary works, such as books, articles, speeches, and computer programs; • musical compositions, with or without words; • dramatic, dramatico-musical, choreographic, and pantomime works, whether or not fixed in writing or notation; • audiovisual and cinematographic works; • works of drawing, painting, sculpture, engraving, and lithography; • architectural works, including designs and realised constructions; • photographic works; • works of applied art, industrial design, and design; • illustrations, maps, plans, sketches, and three- dimensional works relative to geography, topogra - phy, architecture, or science; • computer programs (software); • databases, provided they constitute original intel - lectual creations by reason of the selection or arrangement of their contents; and • collective works and composite works, including periodicals and encyclopaedias. These categories are statutory, but the list is non- exhaustive — meaning that any original intellectual creation may be protected, even if not explicitly men - tioned, provided it meets the requirement of originality (Article 1 (1) and (2). Industrial Designs and Copyright Industrial designs may also be protected under copy - right law in Portugal if they meet the requirement of originality and constitute an artistic creation. This dual protection, under both copyright and industrial property law, is expressly permitted. While industrial design rights are governed by the Indus - trial Property Code ( Código da Propriedade Indus- trial ), copyright protection may apply concurrently if the design reflects a creative expression of its author, beyond mere functionality or technical features.
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