PORTUGAL Law and Practice Contributed by: Ana Rita Paínho, Mariana Costa Pinto and Leonor Ruano Silveira, SÉRVULO
mandatory. Expenses rise with interim measures like injunctions or complex evidence requiring expert reports. 9. Defences and Exceptions to Infringement 9.1 Defences to Trade Mark Infringement Common defences against trade mark infringe - ment include: • no likelihood of confusion (lack of identity/ similarity of goods or lack of identity/similarity between trade marks); • lack of genuine use (if the trade mark owner has not used the mark for five consecutive years, it may be challenged); • acquiescence (owner knowingly tolerates the alleged infringement for five years); and • trade mark invalidity (it can be raised as a counterclaim in infringement proceedings, particularly when based on bad faith registra - tion, violation of competition laws or the use of a sign that is merely descriptive or generic.) 9.2 Defences to Copyright Infringement (Fair Use/Fair Dealing) Portuguese law does not have a general fair use doctrine but provides specific statutory excep - tions where copyrighted works may be used without the owner’s consent. These include private and non-commercial use, criticism or review, educational or scientific purposes, and temporary reproductions essential to techno - logical processes. The law requires that such uses be proportionate and that the author’s name and the source of the work be properly acknowledged. Parody and satire are not explicitly defined as exceptions to copyright infringement in Por -
tuguese law. However, they may fall under the broader fair dealing principles that permit lim - ited use of works for criticism or commentary, as long as they do not mislead the public or unfairly harm the original creator’s interests. The inser - tion of quotes or summaries of other works do not infringe any authorship in the work provided that it is used in justified measure and accompa - nied by a sufficient acknowledgement. 9.3 Exhaustion Trade mark rights are exhausted within the Euro - pean Economic Area (EEA) once a trade marked product is lawfully placed on the market by the rights holder or with their consent. After this, the owner cannot prevent further distribution, unless the product has been altered, impaired or there are legitimate reasons to oppose resale. As for copyright, the licit acts of disposition, through a first sale or any other mean of transfer of the property, exhaust the right for distribution of the original or of copies of a work in the EU. Trade mark and copyright owners can seek preliminary and permanent injunctions to pre - vent both ongoing infringement and imminent threats of infringement. Courts may grant urgent injunctive relief even in the absence of concrete infringement if there is a well-founded risk of vio - lation. Claimants must demonstrate the exist - ence or likelihood of a violation and that failure to act could cause irreparable harm. Available measures include seizure of infringing goods, freezing of assets and orders prohibiting further infringement. 10. Remedies 10.1 Injunctive Remedies
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