Governing Law on Copyright

Copyright is statutory and governed mainly by the Portuguese Copyright and Related Rights Code (Código do Direito de Autor e dos Direitos Conexos), enacted by Decree-Law No 63/85 of 14 March, as amended (most recently by Law No 47/2023).

Nature

Copyright protection is automatic, it arises upon the creation of an original work, without any registration requirement.

Recognition of Common Law Copyright

Portugal is a civil law country, not a common law jurisdiction. Therefore, there is no common law copyright.

However, unregistered works are still protected by law, not by custom or precedent.

Trade Marks

Portugal is a civil law jurisdiction and trade marks are governed by the Industrial Property Code, approved by Law-decree No 110/2018 of 10 December 2018 (as amended by Law-decree No 110/2018 of 29 January 2021).

Portugal is a member of the main international treaties and conventions governing copyright and trade mark protection, including:

• The Berne Convention for the Protection of Literary and Artistic Works (since 1911);
• The Universal Copyright Convention (since 1978);
• The WIPO Copyright Treaty (WCT) (since 1998);
• The WIPO Performances and Phonograms Treaty (WPPT) (since 1998);
• The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (since 1971);
• The TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights), through Portugal’s membership of the European Union and the World Trade Organization;
• The Paris Convention for the Protection of Industrial Property (directly applicable, for some rules); and
• The Madrid System for International Trademark Registration (directly applicable).

As Portugal is an EU member-state, EU regulations apply and are directly applicable.

The following commercial signs can be protected.

• Trade marks (including collective marks and certification marks), which may consist of a sign or set of signs capable of being graphically represented, namely words, including names of persons, drawings, letters, numbers, sounds, colours, the shape of the product or its packaging, scents, holograms, or a sign or set of signs that can be represented in such a way as to allow the object of the protection conferred on its holder to be determined clearly and precisely, provided that they are suitable for distinguishing the products or services of one company from those of other companies. Trade marks that are registered in other countries that are well-known in Portugal are protected, even if not registered in Portugal.
• Logotypes (identifies an entity which commercialises goods and/or provides services, and not the goods and services themselves).
• Appellations of origin, geographical indications and traditional speciality guarantees.
• Rewards (includes awards for merit bestowed by the Portuguese State or by foreign countries; medals, diplomas and monetary prizes or prizes of any other nature obtained at expositions, fairs and contests that are official or officially recognised, held in Portugal or in foreign countries; diplomas and certifications of analysis or praise, issued by laboratories or State services or organisations qualified for such purposes; titles of supplier of the Head of State, government and other entities or official establishments, national or foreign; all other prizes or official demonstrations of preference).
• Hallmarks.

There are two main absolute requirements for a sign to qualify for trade mark protection: (i) capability of being represented in such a way as to allow the object of the protection conferred on its holder to be determined clearly and precisely (sufficient representation), and (ii) ability for distinguishing the products or services of one company from those of other companies (distinctiveness).

An intrinsically non-distinctive sign may be protected if it acquires distinctiveness, ie, if it ceases to be, in the perception of the relevant public, an indication of the type or characteristics of a good or service, and becomes an indication of the commercial origin of goods and services, considering factors such as the market share of the goods and service provided under the relevant sign, the duration, frequency and geographical reach of its use, among others.

According to the Portuguese Industrial Property Code, the main trade mark right arising from registration is to prevent third parties, without the owner’s consent, from using, in the exercise of economic activities, any sign if:

• that sign is identical to the trade mark and is used in relation to goods or services identical to the goods or services covered by the registration;
• that sign is identical to the trade mark and is used in relation to goods or services similar to the goods or services covered by the registration, or if that sign is similar to the trade mark and is used in relation to goods or services identical or similar to the goods or services covered by the registration, if there is a risk of confusion or association in the mind of the consumer; and
• that sign is identical or similar to the trade mark and is used in relation to goods or services covered or not by the registration, if the trade mark enjoys reputation in Portugal or in the European Union, if it is a European Union trade mark, and the use of the sign unduly takes advantage of the distinctive character or prestige of the trade mark or may harm them.

The following use is specifically prohibited:

• affixing the sign to goods, their packaging or other means by which they are presented;
• offering of goods for sale bearing the sign, as well as their placing on the market or storage for that purpose, or the offering or provision of services bearing the sign;
• importing or exporting goods bearing the sign;
• using the sign, in whole or in part, as a company name or business name or as a characteristic part of that company name or business name;
• use of the sign in commercial documents and in advertising; and
• use of the mark in comparative advertising when it contravenes current advertising legislation.

To avoid being subject to cancellation or not being enforceable for non-use, a registered trade mark must have been put to genuine use in the five years prior to the filing date of a cancellation application or to the relevant date in a litigious proceeding. This only applies after the registration has been in force for five years. Genuine use implies the use of the sign as a trade mark, and it must be more than a mere token, symbolic or solely aimed at maintaining registration. It also must concern the sign as registered (or with immaterial modifications), in relation to the goods and/or services covered by the registration, and occur in the relevant territory.

According to the Portuguese Industrial Property Code, a registered trade mark can be used with the indication “Registered Trademark”, the initials “M. R.”, or simply ®.

There are no consequences for not using these words and symbols. However, using them in relation to an unregistered trade mark is illegal.

Trade marks can be validly granted if they do not infringe personal image and name rights, or copyright. If a trade mark consists of a name or of an image of a person, it can only be granted if authorised by that person. Similarly, a trade mark application shall be refused if it consists of a protected work.

Trade marks can be protected by copyright if they are an original “intellectual creation”.

Eligible Works for Copyright Protection

Under Portuguese law, copyright protection extends to all original intellectual creations in the literary, scientific, and artistic domains, irrespective of their form, genre, merit, or purpose.

This protection is established by the Portuguese Copyright Code (Código do Direito de Autor e dos Direitos Conexos), approved by Decree-Law No 63/85 of 14 March 1985, as amended. The categories of protected works are expressly listed in Article 1(1) and further elaborated in Article 2 of the Code.

The main categories of works eligible for copyright protection include:

• literary works, such as books, articles, speeches, and computer programs;
• musical compositions, with or without words;
• dramatic, dramatico-musical, choreographic, and pantomime works, whether or not fixed in writing or notation;
• audiovisual and cinematographic works;
• works of drawing, painting, sculpture, engraving, and lithography;
• architectural works, including designs and realised constructions;
• photographic works;
• works of applied art, industrial design, and design;
• illustrations, maps, plans, sketches, and three-dimensional works relative to geography, topography, architecture, or science;
• computer programs (software);
• databases, provided they constitute original intellectual creations by reason of the selection or arrangement of their contents; and
• collective works and composite works, including periodicals and encyclopaedias.

These categories are statutory, but the list is non-exhaustive — meaning that any original intellectual creation may be protected, even if not explicitly mentioned, provided it meets the requirement of originality (Article 1(1) and (2).

Industrial Designs and Copyright

Industrial designs may also be protected under copyright law in Portugal if they meet the requirement of originality and constitute an artistic creation.

This dual protection, under both copyright and industrial property law, is expressly permitted. While industrial design rights are governed by the Industrial Property Code (Código da Propriedade Industrial), copyright protection may apply concurrently if the design reflects a creative expression of its author, beyond mere functionality or technical features.

In Portugal, copyright protection arises when a work is the author’s own intellectual creation, results from human authorship, and is expressed in a perceptible form. No registration or formalities are required, as protection is granted upon creation of the original work.

Joint authorship arises when a work is created collaboratively by two or more authors whose contributions form an inseparable or interdependent whole, as provided in the Portuguese Copyright Code. To qualify, there must be a shared creative intention that each author’s contribution will merge into a single, unitary work. Merely providing technical assistance or following instructions does not establish joint authorship.

Each joint author holds equal rights over the work unless otherwise agreed. As a rule, exploitation, modification, or licensing of the jointly created work requires the consent of all co-authors, although each may independently enforce rights against infringement. In the absence of a specific agreement, ownership shares are presumed to be equal, regardless of the relative size or importance of each contribution.

Copyright confers both economic rights and moral rights. Economic rights give the owner exclusive control over the use, reproduction, distribution, public performance, communication, and adaptation of the work, and may be transferred or licensed. Moral rights protect the author’s personal connection to the work, including the rights of attribution, integrity, and withdrawal, and are inalienable and perpetual. Economic rights generally last for the life of the author plus 70 years, while moral rights endure indefinitely, even after the economic rights expire.

Moral rights protect the personal and reputational bond between the author and their work and are independent of economic rights. They include the rights to claim authorship, decide whether and when the work shall be disclosed, ensure the integrity of the work (preventing distortion, mutilation, or modification), and withdraw the work from circulation under certain conditions. These rights are inalienable, unrenounceable, and perpetual, continuing to exist even after the author’s death, when they are exercised first by the author’s heirs and later by the State to ensure respect for the author’s moral legacy.

As a general rule, economic rights last for the life of the author plus 70 years after their death, regardless of when or how the work was disclosed. For joint works, the term runs for 70 years after the death of the last surviving co-author. For collective works, anonymous or pseudonymous works, and audiovisual or cinematographic works, the 70-year term is calculated from the date of lawful disclosure.

After the expiry of this term, the work falls into the public domain, and anyone may use it freely, provided that the author’s moral rights particularly the rights of paternity and integrity are respected.

Several collective management organisations (CMOs) operate under the supervision of the Inspeção-Geral das Atividades Culturais (IGAC), the public body responsible for their authorisation and oversight. The main CMOs include:

• SPA (Sociedade Portuguesa de Autores) – for authors and composers in literature, music, theatre, film, and visual arts;
• GDA (Gestão dos Direitos dos Artistas) – for performers and actors;
• Audiogest – for producers of phonograms;
• PassMúsica – for the joint management of public performance rights in recorded music;
• Visapress – for press and publishers’ reproduction rights;
• GesDireitos – for audiovisual producers.

Copyright protection arises automatically upon creation of an original work and does not require registration or any formality. This principle is established in the Portuguese Copyright Code (Decree-Law No 63/85 of 14 March 1985), in line with the Berne Convention. Therefore, registration is not a prerequisite for protection, enforcement, or the exercise of rights.

However, the IGAC maintains a voluntary copyright register, which serves as evidence of authorship and date of creation. Registration does not confer or create rights, but it provides a presumption of ownership and priority, which may be valuable in disputes or court proceedings. The register is publicly accessible, allowing interested parties to consult registered works.

Any author or rights holder whether a natural person or legal entity, Portuguese or foreign may apply for registration. Foreign applicants are not required to appoint a local attorney, though representation is advisable for administrative purposes.

There are no formalities such as copyright notices, © symbols, or deposit obligations required for protection. The use of the © symbol is optional and purely declarative, serving only to inform the public of the existence of copyright but carrying no legal effect under Portuguese law.

In Portugal, copyright registration is voluntary and administered by the IGAC.

To apply for registration, the author or rights holder must submit:

• a completed application form identifying the author, title, and type of work;
• a copy or sample of the work (for example, the manuscript, recording, design, or file);
• any supporting documentation proving authorship or rights (eg, contracts, declarations of creation, or transfer); and
• proof of payment of the filing fee.

Applications may be filed in person, by mail, or online via IGAC’s official website.

The filing fee depends on the nature of the work but is generally modest, typically around EUR50 to EUR70 per registration, with reduced rates for certain categories or online submissions.

Refusal may occur when:

• the work lacks originality or does not qualify as a protectable intellectual creation;
• the application is incomplete or fails to identify the author or rights holder clearly;
• the materials submitted are illegible, insufficient, or non-compliant with the required format; or
• the applicant provides false or misleading information.

Applicants have the right to appeal a refusal. The initial appeal is made to the Director-General of IGAC as an administrative review. If the decision is upheld, the applicant may further appeal to the Administrative Courts, which have jurisdiction over challenges to acts of public administration.

If the application contains errors or incorrect information, the IGAC generally allows the applicant to correct or supplement the information during the examination process. After registration, clerical mistakes or inaccuracies may also be amended upon request, provided that the correction does not affect the substance of authorship or ownership.

In Portugal, a copyrighted work may also benefit from protection under trade mark law or related rights, provided that it meets the legal requirements of each regime.

For example, logos, graphic symbols, or artistic designs originally protected by copyright may also be registered as trade marks or industrial designs if they serve a distinctive commercial function. Similarly, performers, producers of phonograms, and broadcasting organisations enjoy related (neighbouring) rights under the Copyright Code, which coexist with, but are distinct from, authors’ rights.

According to the Portuguese Industrial Property Code, a trade mark right can only arise from a trade mark registration. There are, however, a few exceptions such as for well-known trade marks (which must still be applied for registration in order to be enforceable) and for trade marks used for less than six months, which can serve as relative grounds for refusal of trade mark applications by third parties. Additionally, the unfair competition regime provides some protection to unregistered trade marks.

The Portuguese trade mark register is the Instituto Nacional da Propriedade Industrial (the Industrial Property National Office, or INPI).

Prior to filing trade mark applications prior clearance searches are advisable, preferably using private databases or TMView. The INPI’s search tool is not completely accurate.

A trade mark registration is valid for a ten-year period starting from the application date and can be renewed indefinitely. The renewal period occurs in the last six months of the validity period. After this deadline, there is a grace period of six months, when the renewal may be effected through payment of a 50% surcharge. If the renewal is not completed during the grace period, the cancellation of the registration is published. Within a year of such publication, the registration can still be revalidated upon payment of an amount corresponding to three times the original renewal fee.

A trade mark application is filed before the INPI and can be submitted by any person (natural or legal).

It shall include the name, nationality and address of the applicant and, if the applicant resides in Portugal, the VAT number.

Information on the trade mark to be protected and on the goods and/or services to be covered by the registration and their respective class or classes (multi-class allowed) is also required.

Depending on the type of trade mark, different materials shall be submitted. For example, for non-traditional trade mark:

• sound trade marks must be represented in a JPEG, MP3 or OGG file;
• movement trade marks must be represented in a JPEG, MP4 or OGG file;
• multimedia trade marks must be represented in an MP4 or OGG file; and
• hologram trade marks must be represented in a JPEG, MP4 or OGG file.

The appointment of a representative is not required.

The fees are EUR148,71 for the first class and EUR37,69  for each additional class.

The use in commerce prior to registration is not a requirement for a trade mark application. The use in commerce is generally irrelevant, with the exceptions mentioned in 4.1 Trade Mark Registration.

The INPI examines prior rights even if an opposition is not filed, such as prior trade mark and logotype registrations.

After an application is filed, it can be withdrawn and modified. However, after the application is published, it can only be amended, at the applicant's request, to limit the list of products or services or to correct the name or address indicated in the application, errors in expression or transcription, or obvious errors, provided that the amendment does not substantially affect the trade mark or expand the list of products or services.

Divisional requests are allowed. An applicant may choose to divide a trade mark application for example, if it is expected that it will be refused in relation to some goods or services and refused for others. In such a case, dividing the application may result in a faster proceeding in relation to the goods and services for which the granting is expected.

Incorrect information can be corrected before the INPI.

Signs that cannot be graphically represented in a way that allows the scope of protection to be clearly and precisely determined will be refused registration.

The following are also absolute grounds for refusal of registration:

• signs devoid of any distinctive character;
• signs consisting, exclusively, of the shape, or another characteristic, that results from the nature of the goods themselves, by the shape, or another characteristic, of goods that are necessary to obtain a technical result or by the shape, or another characteristic, that gives substantial value to the goods;
• signs consisting exclusively of signs or indications that may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service;
• signs consisting exclusively of signs or indications that have become customary in the current language or in bona fide and established practices of the trade;
• symbols, coats of arms, emblems or distinctions of the State, municipalities or other public or private entities, national or foreign, the emblem and denomination of the Red Cross, or other similar bodies, as well as any signs covered by Article 6 ter of the Paris Convention for the Protection of Industrial Property, unless authorised;
• signs with high symbolic value, namely religious symbols, unless authorised, when applicable, and except when they are common in the current language or in the loyal habits of trade of the products or services for which the trade mark is intended and accompanied by elements that confer it distinctive character;
• signs that are contrary to public policy or to accepted principles of morality;
• signs that are likely to mislead the public, namely about the nature, qualities, utility or geographical origin of the product or service for which the trade mark is intended;
• signs that infringe designations of origin and geographical indications;
• signs that contain, in all or some of their elements, plant variety names that are protected; and
• signs consisting exclusively of the National Flag of the Portuguese Republic or some of its elements, or, not exclusively, are likely to mislead the public about the geographical origin of the products or services, to lead the consumer to mistakenly assume that the products or services come from an official entity, or to provoke disrespect or discredit the National Flag or any of its elements.

When absolute grounds for refusal are found, the INPI issues a provisional refusal and the applicant is allowed to respond within a month. 

Portugal is party to the Madrid System.

Oppositions can be filed within two months of the publication of the trade mark application and this deadline can be extended for another month. A suspension of the opposition proceeding can be granted if it is requested by both parties, for example, to reach an agreement.

Annulment applications can be filed within five years of the granting of the registration. Applications for the declaration of nullity can be filed at ay time.

An opposition may be based on:

• likelihood of confusion with an earlier registered trade mark;
• likelihood of confusion with an earlier registered logo;
• likelihood of confusion with an earlier protected designation of origin or geographical indication;
• infringement of other industrial property rights;
• the use of names, portraits or any expression or characterisation, without authorisation from the person in question;
• unfair competition;
• likelihood of confusion with earlier company names and other distinctive signs;
• copyright infringement;
• the application having been filed by an unlawful agent; and
• the likelihood of confusion with a well-known trade mark with an existing reputation.

These are also the grounds for annulment applications, with the exception of unfair competition.

Applications for the declaration of nullity can be based on any absolute grounds, as described in 4.10 Refusal of Registration and on bad faith.

Oppositions and cancellation actions can be filed by anyone who may be affected by the eventual granting of a registration, based on the absolute or relative grounds for refusal indicated in 4.10 Refusal of Registration and 5.2 Legal Grounds for Filing an Opposition, including owners or licensees of prior rights. Professional representation is not required.

The INPI’s fees for oppositions and for cancellations for non-use are EUR62.83. For annulment applications and applications for the declaration of nullity the INPI’s fees are of EUR233.51.

Attorneys’ fees may range between EUR500 and EUR1,300.

Opposition is filed within two months of the publication of the application. Upon notification of the opposition, the applicant may file a counterstatement within two months. The applicant can request that the opponent provide evidence of using the signs that are the object of the earlier rights. If the applicant fails to provide sufficient evidence, the opposition will be deemed unfounded. Until a final decision is issued by the Office, any party can file additional arguments.

The invalidity application (for annulment or for declaration of nullity) is filed before the Office. The owner of the registration which is subject to the invalidation request is notified and can file a response within two months. The Office then issues a decision. A procedure regarding proof of trade mark use similar to that described for oppositions is applicable.

Cancellation actions for non-use can be filed before the INPI at any time (five years after registration). The owner of the registration is notified to file proof of use within a month.

Partial cancellation and revocation are possible.

Appeals against all INPI’s decisions can be filed before the Portuguese IP Court.

These decisions can also be appealed against before the INPI, except for decisions in actions for annulment and for the declaration of nullity, which can only be appealed against before the IP Court.

The trade mark owners can surrender their registrations, partially or totally, during the proceedings.

Actions for revocation/cancellation are handled by the INPI while infringement actions are handled by the IP Court. However, the defendant in an infringement action can request the revocation/cancellation as a defence.

Any fraudulent trade mark filing is treated under the absolute ground for refusal on the basis of “bad faith”.       

Trade Mark Registration Assignment

Trade mark assignments must be executed in writing and, to be legally enforceable against third parties, registered with the INPI. They may be total or partial. If the trade mark incorporates a personal, company, or trade name, the assignment agreement must include a specific authorising clause to be valid.

Assignment of Copyright

Under the Copyright Code, economic rights may be assigned wholly or partially, provided the assignment is in writing. Moral rights, however, are inalienable and non-transferable. No registration or approval is required, but assignments must clearly define the scope, duration, and purpose of the transfer.

The author’s economic rights pass to their heirs and remain valid for 70 years after death, while moral rights continue perpetually, exercised first by the heirs and later by the State.

Trade Mark Licensing

Trade mark registrations may be subject to an operating licence, in whole or in part, free of charge or for a fee, in a specific zone or throughout the national territory, for the entire duration of their operation or for a shorter period, and can be applied to trade mark applications, and must be in written form and, to be legally enforceable against third parties, registered with the INPI.

Copyright Licensing

Under the Copyright Code, licences must be in writing and clearly specify their scope, duration, and purpose. No registration or administrative approval is required.

Copyright licences may be:

• exclusive – granting the licensee the sole right to use the work within the agreed scope; or
• non-exclusive – allowing the author to license the same rights to others.

Licences may be perpetual if expressly agreed, though courts interpret perpetual exclusivity narrowly to preserve the author’s freedom. They may also include archival, digital, or derivative-use rights, provided these are specifically mentioned in the contract.

Trade Mark

To be legally enforceable against third parties, licences must be registered with the INPI.

Copyright

Assignments and licences of copyright do not require registration.

These contracts must be in writing but are effective upon execution, with no administrative filing needed.

A voluntary record may be made with the IGAC, serving as evidence of authorship or transfer, but registration is not constitutive of rights.

Accordingly, there is no legal risk of loss of priority during any gap period, since ownership and licensing are effective immediately upon agreement.

In Portugal, infringement claims are subject to specific statutory deadlines rather than a single general statute of limitations. Claims for financial compensation, regarding both trade marks and copyright, must generally be brought within three years from the date the rights holder becomes aware of the infringement, according to the Civil Code, Article 498. However, if the infringement constitutes a crime (eg, counterfeiting), this limitation period is extended to match the criminal statute of limitations, which is often longer. Regarding equitable defences similar to laches, Portuguese law enforces a five-year period of “acquiescence”. If a trade mark holder knowingly tolerates the use of a later registered mark for five consecutive years, they lose the right to challenge it, under the Industrial Property Code, Article 261. Additionally, excessive delays in enforcing rights generally can be dismissed by courts under the doctrine of “Abuse of Right” (Civil Code, Article 334), if the delay created a legitimate expectation that no legal action would be taken.

In the event of an infringement, the proprietor of a trade mark or copyright right (or of any other industrial property right or trade secret) has access to a diverse range of remedies, provided both under the Industrial Property Code, the Copyright Code and general civil law.

In the civil sphere, these remedies include, inter alia, injunctive actions ‒ aimed at bringing the unlawful acts to an end and preventing their recurrence ‒, civil liability claims, seeking compensation for both pecuniary and non-pecuniary damage arising from the infringement of the exclusive right, as well as measures for obtaining and preserving evidence and accessing information.

Depending on the procedural strategy adopted by the injured party, such measures may be accompanied or preceded by interim measures intended to secure the practical effectiveness of judicial protection, notably through the seizure of products, the preservation of evidence, or the immediate suspension of the infringing acts.

In addition to civil remedies, criminal or administrative liability may also arise where the infringer’s conduct satisfies the relevant statutory elements, particularly in situations involving counterfeiting, usurpation, or repeated violations of industrial property rights.

Trade Marks

The factors for determining trade mark infringement are explicitly established in Article 249 of the Industrial Property Code. These statutory provisions mirror the EU Trade Mark Directive. See 7.2 Legal Claims for Infringement Lawsuits and Their Standards.

Copyright

While the Code of Copyright and Related Rights does not provide a single "test" like the trade mark likelihood of confusion, the factors are established across specific articles defining exclusive rights and exceptions.

Under Article 68, the primary factor is whether the defendant’s conduct falls within the exclusive rights reserved for the author, such as reproduction, distribution, or communication to the public. If the act fits one of these legal definitions and was performed without authorisation, it is effectively an infringement.

The “Three-Step Test”, established in Article 75, No 4 of the Code of Copyright and Related Rights, states that if the defendant claims their use is permitted under an exception, the court applies a statutory balancing test. 

In certain cases, sending a cease-and-desist letter to the infringer prior to the initiation of judicial proceedings may prove useful. However, such prior communication does not constitute a mandatory requirement under Portuguese law. The decision as to whether a warning letter should be sent to the potential defendant is assessed on a case-by-case basis. Regarding other prerequisites, for trade marks, in most cases, a registration is a mandatory prerequisite for filing a standard infringement lawsuit, as the Portuguese system is heavily registration-based and mere use generally does not grant standing to sue. Conversely, copyright enforcement does not require prior registration, though the claimant bears the burden of proving authorship. Additionally, there is no mandatory requirement to engage in mediation or arbitration before filing a claim.

Proceedings can be initiated before the Intellectual Property Court.

Court fees vary depending on the value of the claim and are typically lower in preliminary measures.

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 represented by a lawyer

For trade marks, the mark generally must be registered, 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 registered. Protection arises automatically upon creation, regardless of the owner’s nationality.

An alleged infringer can, in principle, initiate a negative declaratory action to obtain a court ruling stating that their conduct does not constitute infringement. However, 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 mechanisms 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 copyright. If successful, this invalidates the right retroactively, thereby defeating the infringement claim.
• While a defendant can theoretically initiate a negative 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 declaratory action may be deemed unnecessary or suspended.
• Generally, the Intellectual Property Court has exclusive jurisdiction over these matters. Starting proceedings in other civil courts to block the Intellectual Property Court is typically not a viable strategy.

Portugal does not offer a specific “small claims” avenue for intellectual property disputes. The Intellectual 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.

Civil courts are not bound by these decisions, but they are used as a context of the case.

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 authorship, and “counterfeiting”, under Articles 195–196 of the Code of Copyright and Related Rights. Special remedies include the seizure and mandatory destruction of infringing goods and materials. Similarly, bootlegging, 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 producers and is also subject to criminal liability, carrying the same potential penalties of imprisonment or fines as standard copyright infringement.

Portugal has a specialised court for these matters. While the judges assigned to the Intellectual Property Court may possess high-level specialisation in IP law, they are not technical officers. Consequently, the assessment of complex technical or scientific matters is addressed through expert evidence, where the court appoints independent experts to provide technical reports. However, the judge retains full sovereignty over the final decision under the principle of free assessment of evidence. Crucially, parties are strictly precluded from influencing the selection of the decision-maker. Case assignment is governed by a mandatory electronic distribution system to ensure randomness and compliance with the constitutional principle of the “Natural Judge.”

Registration confers a legal presumption of validity and ownership (iuris tantum). Under Article 4 of the Industrial Property Code, the registered proprietor is presumed to be the legitimate owner of the right, shifting the burden of proof to the defendant to demonstrate otherwise.

Furthermore, the defence of acquiescence limits challenges over time. If a trade mark owner knowingly tolerates the use of a later registered mark for five consecutive years, they are statutorily barred from seeking its annulment or opposing its use.

For the alleged infringer to use the mark for the identical goods or services listed in the registration. While “double identity” constitutes automatic infringement, liability also arises where the use covers similar goods or services, provided there is a likelihood of confusion, including a risk of association, on the part of the public. Moreover, for trade marks with a reputation in Portugal, protection extends even to dissimilar goods or services, if the use takes unfair advantage of, or is detrimental to, the distinctive character or repute of the mark.

Undoubtedly, legal fees constitute the most significant and variable cost component. While court fees remain fixed and predictable based on the statutory claim value, professional fees fluctuate directly with the procedural intensity of the case. The volume of pleadings, the filing of interlocutory motions, and the duration of trial hearings significantly escalate these costs. Furthermore, since the recovery of legal fees from the losing party is statutorily capped, the financial burden of a protracted litigation falls disproportionately on the claimant, regardless of the final outcome.

Defences against infringement in Portugal are strictly statutory. For copyright, often acting as total bars to liability if successfully proven. For trade marks, the primary defences include invalidity of the plaintiff’s mark, like registered in bad faith or lacking distinctiveness, forfeiture due to non-use under Article 268 of the Code of Industrial Property, and acquiescence, which bars the owner from challenging a later registered mark if they have knowingly tolerated its use for five years, under Article 261 of the Code.

While there is no “open” fair use doctrine analogous to the US system, Portuguese law provides a non-exclusive list of statutory exceptions, which explicitly includes parody, caricature, and pastiche and private use. For trade marks, defences include the use of one’s own name, strictly for natural persons and in accordance with honest practices, and the exhaustion of rights.

As stated in 9.1 Defences to Trade Mark Infringement, Portugal does not recognise a general, open-ended “fair use” doctrine similar to the one found in the United States. Instead, the legal system operates on a list of specifically defined statutory exceptions, legally termed as free uses, which allow for the unauthorised use of copyrighted works for precise purposes such as private copying, educational use, and 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 copyright infringement for the purposes of caricature, parody, and pastiche. This exception was codified in the Code of Copyright and Related Rights following 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.

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 specific 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 specific physical item. In contrast, this doctrine does not apply to digital content supplied via online transmission. 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 seizure 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.

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 reparable, or that the claimant delayed unreasonably in bringing the action thereby negating the alleged urgency.

The need to compensate the right holder for the infringement of trade mark rights is governed by Article 347 of the Industrial Property Code. It is applicable in cases of intentional or negligent infringement (paragraph 1).

As a consequence of the transposition of the EU Enforcement Directive, Portuguese law stipulates that, in assessing the quantum of damages, elements beyond actual loss and loss of profit (paragraph 2), as well as beyond moral damages (paragraph 4), must likewise be taken into consideration.

Consideration must additionally be given to the profits obtained by the infringer and to the expenses incurred with the protection, investigation and cessation of the infringing conduct (paragraph 2). Paragraph 3 further states that regard should be had to the significance of the revenue generated by the infringer’s unlawful conduct, a criterion that is largely redundant in light of the reference to the profits obtained by the infringer in the preceding paragraph.

Paragraph 5 provides that, where it is not possible to determine the amount of the damage actually suffered by the injured party, and provided that the latter does not object, the court may, on the basis of equity, set a lump-sum amount which shall be not less than the remuneration that would have been payable had the infringer requested authorisation to use the industrial property rights or trade secrets at issue (Lizenzanalogie).

To this amount must be added the expenses incurred in protecting the right, as well as those arising from the investigation and cessation of the infringing conduct. Contrary to the Enforcement Directive, the Portuguese legislature characterises this criterion as an “alternative” method. An interpretation consistent with the Directive must, however, be adopted, according to which the damages in question constitute a “subsidiary” method, to be employed only where it is impossible to determine the actual amount of harm suffered by the injured party, and provided that the latter does not object.

Additionally, under paragraph 6, where the infringer’s conduct amounts to a repeated practice in relation to the injured party or proves particularly serious, the court may determine the damages owed by cumulatively applying all or some of the criteria set out in the provision. This rule is not contained in the Enforcement Directive and has prompted significant debate in Portuguese scholarship. Several authors argue that it should not be applied, on the ground that it is incompatible with the Directive and departs from the national legal tradition governing damages for the infringement of industrial property rights or trade secrets, in so far as it appears to introduce punitive damages.

Contrary to the objective of the Enforcement Directive, certain case law has downplayed the significance of the enhanced protection afforded to industrial property rights through the specific rules established for that purpose. In this regard, reference may be made, for example, to a judgment of the Porto Court of Appeal, which states that these rules amount to “a regime that is different from, or more generous than, the general rules governing compensation set out in Articles 562 et seq. of the Civil Code.” The judgment further adds that “what may be understood is that this is a more detailed provision, which supplies additional criteria for operationalising the so-called theory of difference, with the aim of avoiding compensations that are unsatisfactory and that do not contribute to the effective protection of intellectual and industrial property rights”.

Judges exercise significant discretion, particularly when resorting to equity to fix global sums where precise quantification is impossible. The overarching goal, derived from the Enforcement Directive, is to ensure remedies are effective, proportionate, and dissuasive.

The allocation of costs follows the “loser pays” principle, enshrined in Article 527 of the Civil Procedure Code. The party that loses the lawsuit is responsible for paying the court fees and must reimburse the prevailing party for their litigation expenses. This reimbursement is claimed through a specific procedural note termed Nota de Custas de Parte. However, this fee-shifting mechanism is not full indemnification. While the winning party can recover the court fees in full, the reimbursement for attorneys’ fees is strictly capped by statute. The amount recoverable for legal counsel is limited to 50% of the total court fees paid by all parties, which typically covers only a fraction of the actual legal fees incurred. Consequently, even a fully successful litigant will bear the majority of their own attorney’s costs.

A trade mark or copyright owner can indeed seek and obtain preliminary relief without prior notice to the defendant, particularly in the form of an ex parte injunction, provided that specific statutory requirements are met. This exceptional mechanism is reserved for situations of extreme urgency where any delay inherent to the standard notification process would cause irreparable harm to the rights holder, or in cases where the very effectiveness of the measure depends on the element of surprise to prevent the destruction of evidence or the dissipation of assets. In the absence of these specific exigencies, the court adheres to the standard adversarial principle by issuing a formal citation to the defendant, granting them the opportunity to file a written opposition and be heard before any judicial decision is rendered on the requested measures. Conversely, if an ex parte order is granted, the defendant is notified immediately after the execution of the measure to exercise their right to appeal or request a review of the decision.

Customs enforcement is governed by EU Regulation No 608/2013, which establishes a proactive mechanism for seizing infringing goods at the border. To trigger this protection, rights holders must file an Application for Action (AFA) with the Portuguese Tax and Customs Authority. This filing compels the Customs Authority to detain suspected goods and notify the rights holder, who then has a strict ten-day period to confirm the infringement.

Decisions on trade mark or copyright infringement can be appealed through the ordinary judicial system; both are appealed to the Tribunal da Relação, in accordance with the general rules of civil procedure.

Appeals must be lodged within the legally prescribed time limit, usually 30 days from notification of the decision in civil cases.

As regards duration, an appeal before a Tribunal da Relação typically takes one to two years to be decided, depending on the complexity of the case and the court’s workload. Further appeals to the Supreme Court of Justice, where admissible, usually take an additional one to two years.

The authors do not have knowledge of recent decisions on emerging topics such as AI.

In the online environment, specific procedures apply to trade marks and copyright. Internet service providers and online platforms generally benefit from liability limitation regimes, provided that they do not have actual knowledge of unlawful content and act expeditiously to remove or disable access to it once notified. In practice, many platforms require evidence of ownership of the relevant right, such as a trade mark registration or proof of copyright ownership or licence, before removing allegedly infringing content, and they usually operate internal notice and counter-notice mechanisms.