Decreto-Lei n.º 110/2018
- Emissor:Presidência do Conselho de Ministros
- Entidade Proponente:Justiça
- Tipo de Diploma:Decreto-Lei
- Páginas:5596 - 5663
Summary in plain english (Without legal value)
What is it?
This decree-law approves the New Industrial Property Code, bringing it closer to the European rules, and amends the regime regarding disputes in relation to reference and generic medicines.
The industrial property is the term which defines the set of rights on human creations (such as patents, brands, models and designs).
The industrial property ensures the fair competition, in the trade and industry, by regulating the right to use brands, patents, models, designs and other symbols.
What is going to change?
Request to register a Brand
The brand comprises one or several symbols (for instance, words, drawings, letters) which allow to identify and distinguish a company’s product or service.
The request to register a brand is carried out before the National Industrial Property Institute (INPI) through an application.
Besides other elements, the application must contain a representation of the brand (through the symbol) which allows to clearly determine the object of protection granted to the brand’s owner. (The submission of a graphical representation of the symbol is no longer required).
The final INPI’s decisions on the requests and registries processes are published at the Bulletin of Industrial Property.
Communication with the INPI
The communication between the stakeholders and the INPI must be carried out, whenever possible, through the electronic data transmission.
Invocation of the lack of genuine use
It is possible, when there is a claim grounded on the existence of a previous brand, with at least five years of registry, to invoke the lack of the genuine use of the brand, to prevent the opposition to a registry.
The claimant must prove that the brand, which is the basis of the claim, has been the subject of genuine use.
The genuine use of the brand is the use of the brand as it is registered (without altering the characteristic elements of its distinctive character).
Validity of the registries
The competence to decide on the validity of the registries is no longer exclusive of the Intellectual Property Court (TPI).
Therefore, the declaration of invalidity or the annulment:
- of patents, complementary protection certificates, utility models and topographies of semiconductor products is carried out by the TPI;
- of registries of designs, models, brands, logos, appellation of origin, geographical indications and rewards is carried out by INPI and its decisions may be subject of an appeal to the TPI.
The secret information (not generally known or easily accessed), with commercial value, are protected by the professional secrecy.
It is licit to obtain a trade secret which derives, for instance, from an independent discovery or creation.
It is illicit to obtain a trade secret through the access, appropriation or non-authorized copy of documents, materials or electronic files by someone who:
- Obtained it illegally;
- Breaches a confidentiality agreement;
- Breaches a contractual duty.
Those who breach the protected professional secrecy are punished with a fine between 5.000€ and 100.000€ (in the case of legal persons) and between 1.000€ and 30.000€ (in the case of individuals).
Mechanisms to protect the professional secrecy are created to prevent and sanction illicit practices.
Fight against counterfeiting
Rules which reinforce the fight against counterfeiting are created.
The counterfeiting consists of the imitation of a product in order to deceive its authenticity (the production of a material which reproduces or imitates a trademark, the use of reproductions or imitations of trademark, such as the designation, for instance).
Those who practice the crime of counterfeiting are punished with a prison sentence up to three years or with a penalty fine up to 360 days.
How is this fight carried out?
- The several industrial property rights are criminally protected evenly.
- Through the application of accompanying sanctions regarding the crimes and infractions (for example, the prohibition to exercise certain activities or occupations or the closure of an establishment).
- It is now mandatory to inform the industrial property rights’ holders on the seizure of assets carried out by the criminal police bodies.
- The seized objects, which have been deemed forfeited to the State (objects which were the target of a crime against the industrial property) are destroyed.
- The Criminal Police Bodies may carry out an examination of the seized objects when it is clear that they are not manufactured or traded by its right’s holder.
Therefore, the survey’s archiving due to the holder’s inaction is prevented.
The breach of the names, establishment insignia and logos is now a crime.
The parties may resort to the arbitral or legal court (Industrial Property Court) to solve disputes on the industrial property rights regarding reference medicines.
The mandatory arbitration is eliminated.
What advantages does it bring?
This decree-law, in harmony with the European rules, reinforces the use of industrial property in our country, improving the conditions so that the companies may innovate and differentiate their products and services on the national and European market.
The administrative proceedings regarding the assignment, maintenance and termination of the industrial property rights become simpler, clearer and more modern.
The industrial property rights’ protection system becomes stronger and more efficient.
When does it enter into force?
This decree-law enters into force on 1 July 2019.
The rules regarding the protection of trade secrets enter into force on 1 January 2019.