PORTUGAL Law and Practice Contributed by: Vítor Palmela Fidalgo, João Pereira Cabral and Diogo Antunes, Inventa
the reporting of current events. The application of any of these specific exceptions is strictly governed by the statutory three-step test, which dictates that the use must be limited to certain special cases, must not conflict with the normal exploitation of the work, and must not unreasonably prejudice the legitimate interests of the rights holder. Portugal explicitly recognises an exception to cop - yright infringement for the purposes of caricature, parody, and pastiche. This exception was codified in the Code of Copyright and Related Rights follow - ing the transposition of the European Union directive, ensuring that works created for these purposes do not require authorisation from the original author. While the statute does not provide a rigid definition, judicial interpretation typically follows European standards, requiring that the parody evokes an existing work while being noticeably different from it and constitutes an expression of humour or mockery. There is no specific statutory provision within the trade mark legislation that explicitly creates a defence based on freedom of speech or the right to information. However, these are fundamental constitutional rights that courts must weigh against the property rights of the trade mark owner when assessing infringement allegations. Regarding the right to information, the law provides for specific limitations on the effects of a trade mark, permitting third parties to use a mark when necessary to indicate the intended purpose of a product, such as for accessories or spare parts, or in the context of comparative advertising, provided such use complies with honest practices in industrial and commercial matters. 9.3 Exhaustion According to EU law, trade mark rights are considered exhausted only when the goods have been put on the market in the EEA by the proprietor or with their consent. Once this first authorised sale occurs within the EEA, the proprietor generally cannot prohibit the subsequent resale or commercialisation of those spe - cific goods, effectively validating the first sale doctrine within this regional scope. For copyright, it is recognised the exhaustion of the distribution right for copyright, but this doctrine is
strictly applied to the sale of tangible copies of the work. Consequently, once a physical copy, such as a book or CD, is sold within the European Union with the author’s authorisation, the copyright owner is barred from preventing the subsequent resale of that spe - cific physical item. In contrast, this doctrine does not apply to digital content supplied via online transmis - sion. The Court of Justice of the European Union has ruled that such acts constitute a communication to the public rather than distribution, meaning that the resale of “used” digital files, like e-books or audio files, is legally prohibited without a new authorisation from the rights holder. A wide range of interim and preliminary measures is available to rights holders, as indicated in 7. Initiating Trade Mark and Copyright Lawsuits , including orders to cease the infringing conduct immediately, the sei - zure of infringing goods and the machinery used to produce them, and the recurring penalty payments for non-compliance. While the specific freezing of bank accounts is a general civil remedy available if there is a proven risk that the defendant will dissipate assets to avoid paying damages, it is less frequently granted than the direct seizure of physical stock. The judge exercises significant discretion in determining the specific measures, having the authority to tailor the injunction to what is strictly necessary to prevent the infringement or preserve evidence, provided the remedy is proportionate to the harm alleged. 10. Remedies 10.1 Injunctive Remedies To obtain a preliminary injunction, the rights holder must satisfy two cumulative requirements: (i) the appearance of a valid right showing that infringement is occurring or imminent, and (ii) a genuine urgency or risk of delay where waiting for a final decision would cause irreparable or substantial harm. The court also weighs the balance of interests to ensure that the damage caused to the defendant by the measure is not vastly superior to the advantage gained by the claimant. Conversely, a defendant can successfully oppose a preliminary injunction by demonstrating that the claimant’s right is invalid, that no infringement has occurred, that the harm is purely monetary and thus
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