In Portugal, protection for geographical indications is provided through unfair competition law and special registration. The recognition of a geographical indication depends on registration. However, the indication of source does not depend on registration.
In Portuguese law, there is one single regime of protection for geographical indications.
The protection of geographical indications extends only to products.
In Portuguese law, the protection of geographical indications is governed by the Industrial Property Code (Article 249.3-5, Articles 250-254 and, as far as criminal offences are concerned Articles 260(f) and 269(c)).
The recognition of geographical indications is provided through the Industrial Property Code, specifically in the articles mentioned in the response to Question 4.
[Answer 4: In Portuguese law, the protection of geographical indications is governed by the Industrial Property Code (Article 249.3-5, Articles 250-254 and, as far as criminal offences are concerned Articles 260(f) and 269(c)).]
Examples of protected domestic geographical indications: - Cabrito da Gralheira – Regulation (EEC) 2081/92 and Desp. Nor. 293/93 of 1 October; - Citrinos do Algarve – Regulation (EEC) 2081/92 and Desp. Nor. 293/93 of 1 October; - Azeites do Norte Alentejano – Regulation (EEC) 2081/92 and Desp. Nor. 293/93 of 1 October; - Vinho Regional Alentejo – Decree-Law 429/86 of 29 December.
The protection required under Article 23.2 of the TRIPS Agreement is provided for all products. This follows from the protection for geographical indications provided in the articles mentioned in the response to Question 4.
Geographical indications are defined in Article 249.3 of the Industrial Property Code.
This definition comprises geographical indications identifying products of a certain quality or reputation which are indirectly linked to a specific region.
The criterion used in determining whether recognition should be given to a geographical indication is that of truth.
The definition of geographical indications does not provide for the presence of human factors, including human creativity, in the making of specific products.
There is no legal relation in this respect between geographical indications and other intellectual property rights, such as patents.
Natural or legal persons, public or private, must take the initiative in establishing geographical indications. However, their recognition is a matter for the public authority set up under the Industrial Property Code.
The Portuguese legislation does not have any specific criteria for homonymous geographical indications for wines. When it is possible to avoid confusion between two homonymous geographical indications, the general rule is applied. Both will be registered under Article 253(d) of the Industrial Property Code.
The national legislation provides for recognition and protection of geographical indications or appellations of origin of foreign countries in Article 254.3 of the Industrial Property Code.
Portuguese law does not provide for the protection of geographical indications not protected in the country of origin.
A government organization or a private entity can own the rights to a geographical indication.
The National Institute of Industrial Property is the competent authority for registering a geographical indication.
The initiative in registering a geographical indication is taken exclusively by the persons so authorized.
The fees involved in applying for and maintaining rights in a geographical indication are Esc 18,950 and Esc 14,650 respectively.
The geographic criterion must be accompanied by criteria of reputation, quality or some other characteristic relating to the geographical indication.
The information to be supplied is that specified in Article 252 of the Industrial Property Code.
The goods with respect to which a geographical indication is claimed must be set out.
The recognition of a geographical indication may be opposed before the administrative decision is taken. After the decision has been taken, an appeal may be lodged within three months of administrative publication. The registration of a geographical indication may also be the subject of revocation proceedings.
Anyone with a legitimate interest may oppose the recognition of a geographical indication.
The procedure to be followed to obtain recognition and protection for geographical indications and appellations of origin of foreign countries is the same as for Portuguese geographical indications and appellations of origin.
The recognition of a geographical indication continues indefinitely.
Geographical indications do not need to be renewed or reaffirmed.
The Industrial Property Code does not require a geographical indication to be used in order to maintain rights.
There is no specified limit for non-use of a geographical indication.
The registration authority does not have a monitoring function. However, the corresponding products may be monitored by the competent authorities.
The government entity is responsible for monitoring the qualities of the products by means of technical examinations which serve for authorizing the use of geographical indications.
The forfeiture (lapse) of geographical indications is provided for in Article 256 of the Industrial Property Code. This article does not refer to non-use but as grounds for forfeiture the transformation of a geographical indication into a generic name is mentioned. This procedure does not apply to viticultural products.
The application for forfeiture must be lodged with the National Institute of Industrial Property at the initiative of an interested party; the procedure is an administrative one and there is provision for appeal.
Anyone who meets the criteria submitted to obtain recognition of a geographical indication may use that geographical indication without having to follow additional criteria or procedures.
The entity that obtained the recognition makes the determination regarding use of the geographical indication.
See response to Question 20. The geographical indication may not be considered to have been registered until the fees have been paid.
[Answer 20: The fees involved in applying for and maintaining rights in a geographical indication are Esc 18,950 and Esc 14,650 respectively.]
If a dispute concerning continuity of use arises among the users of a geographical indication, it is the entity which obtained recognition that decides it. However, if the dispute involves third parties, the procedure followed to resolve it is determined by the administration, with the possibility of appeal.
Authorized users do not have to use the geographical indication continually to retain their right to use it.
If there is a dispute over continuity of use, it must be resolved by the entity which granted recognition of the geographical indication.
The protection regime does not allow geographical indications to be licensed.
Portuguese law does not recognize the principle of Article 24.4 of the TRIPS Agreement and its deletion from the Agreement is therefore proposed. In Portugal, there are no specific cases that would permit the application of this Article.
The registration and maintenance of the registration of a mark do not prejudice the subsequent protection of geographical indications. Nor is annulment possible. Accordingly, the Industrial Property Code does not provide for this eventuality (see Articles 33 and 214 of the Industrial Property Code).
The protection of geographical indications is based on Article 189 of the Industrial Property Code concerning the registration of trademarks.
The complaint through official channels, with the possibility of appeal, follows the procedure provided in the case of trademark disputes.
There are means of enforcing rights in geographical indications. These can be found in the law on unfair competition (Articles 260(f) and 299(c)), in the law on trademarks (Article 189(l)) and in the law on geographical indications (Article 253(d)).
Anyone with a legitimate interest.
To enforce a right in a geographical indication application should be made, in the first instance, to the National Institute of Industrial Property, which is an administrative body, and to the courts. At the administrative level there are no fees payable. However, there is a special law setting out the fees payable for making a judicial appeal.
The public is informed of the existence of a geographical indication through the Industrial Property Bulletin which is published monthly as an appendix to the Diario da Republica (Official Journal).
Unauthorized use of a geographical indication can be subject to criminal action. In this case, the charge is brought by the public prosecutor with or without notification of interested parties. The case is tried in the criminal courts.
Portugal is party to the following international and bilateral agreements which have been negotiated and concluded in order properly to define the protection accorded to appellations of origin and geographical indications: - Paris Convention; - Madrid Agreement on false indications of sources; - Lisbon Agreement; - Bilateral Agreement with Spain; - Bilateral Agreement with Hungary; - Bilateral Agreement with Switzerland; - Bilateral Agreement with Czechoslovakia.
There are no other international agreements on this subject.
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