PORTUGAL Law and Practice Contributed by: Vítor Palmela Fidalgo, João Pereira Cabral and Diogo Antunes, Inventa
Given the specialised nature of these cases and the fact that the claim value typically exceeds the limit for self-representation (EUR5,000), parties must be rep - resented by a lawyer For trade marks, the mark generally must be reg - istered, either as a national Portuguese mark or an EU trade mark, to be enforced. However, exceptions exists for well-known marks, unfair competition, bad faith cancellations, etc, For copyright, the work does not need to be regis - tered. Protection arises automatically upon creation, regardless of the owner’s nationality. 7.6 Declaratory Judgment Proceedings and Other Protections for Potential Defendants An alleged infringer can, in principle, initiate a negative declaratory action to obtain a court ruling stating that their conduct does not constitute infringement. How - ever, in practice, the alleged infringer usually waits for the rights holder to take the initiative in bringing proceedings. To protect itself against an infringement claim, a potential defendant has several procedural mecha - nisms available, as set out below. • If the rights holder requests urgent preliminary measures, such as the seizure of goods, before a final decision, the defendant may apply to the court to lift the measure by posting a bond themselves, provided the court accepts that this amount is sufficient to guarantee the rights holder’s potential compensation. • As a primary defensive strategy, the defendant can file a counterclaim within the same proceedings challenging the validity of the trade mark or copy - right. If successful, this invalidates the right retro - actively, thereby defeating the infringement claim. • While a defendant can theoretically initiate a nega - tive declaratory action to obtain a ruling that their products do not infringe, this is less common in practice once a dispute has escalated. If the rights holder files an infringement suit first, the declara - tory action may be deemed unnecessary or sus - pended.
• Generally, the Intellectual Property Court has exclusive jurisdiction over these matters. Start - ing proceedings in other civil courts to block the Intellectual Property Court is typically not a viable strategy. 7.7 Small Claims Portugal does not offer a specific “small claims” avenue for intellectual property disputes. The Intel - lectual Property Court holds exclusive jurisdiction over all actions concerning the infringement or validity of trade marks and copyright, regardless of the financial value of the claim. Consequently, the Justices of the Peace, which typically resolve small civil disputes up to EUR15,000, are not competent to hear trade mark or copyright infringement cases, as subject-matter jurisdiction for these specific rights is legally reserved for the specialised Intellectual Property Court. 7.8 Effect of Trade Mark and Copyright Office Decisions Civil courts are not bound by these decisions, but they are used as a context of the case. 7.9 Counterfeiting and Bootlegging Counterfeiting constitutes a serious criminal offence punishable by imprisonment of up to three years or a fine. For trade marks, it involves the unauthorised use or imitation of a registered sign, while for copyright, it encompasses “usurpation”, falsely claiming author - ship, and “counterfeiting”, under Articles 195–196 of the Code of Copyright and Related Rights. Special remedies include the seizure and mandatory destruc - tion of infringing goods and materials. Similarly, boot - legging, understood as the unauthorised recording, fixation, or distribution of live performances, is legally addressed as a violation of Related Rights under the Code of Copyright and Related Rights. This conduct infringes the exclusive rights of performers and pro - ducers and is also subject to criminal liability, carrying the same potential penalties of imprisonment or fines as standard copyright infringement.
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