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Amendments to Trademark Laws

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Jun 28, 2018 (Newsletter Issue 12/18)
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Draft Proposal for New IP Code Submitted

The Portuguese Government has submitted a proposal for a new Industrial Property Code to the Parliament for approval which will repeal and substitute the most important IP law in force.
The current IP Code was adopted in 2003 (Decree Law 36/2003) and amended in 2008 (Decree Law 143/2008). According to its preamble the draft proposal has the following goals:

a) Implementing the recast of the EU trademark directive - Directive (EU) 2015/2436 of the European Parliament and of the Council of December 16, 2015;
b) Implementing the EU trade secrets directive - Directive (EU) 2016/943 of the European Parliament and of the Council of June 8, 2016;
c) “Simplifying and clarifying administrative procedures of granting, maintenance and extinction of industrial property rights”;
d) “Adopting mechanisms to strengthen the rights protection system and to give effectiveness to remedies against infringements”.

The changes provided by the proposal are substantial in number and extension and touch upon all industrial property rights. Some of the most noteworthy amendments proposed on trademarks are the following:

The proposal reflects the provisions of the Directive (EU) 2015/2436 which brings some important innovations into the national law, namely the

- Request of evidence of use as a defence in opposition proceedings
- Intervening rights of proprietor of later registered trademarks as defence in infringement proceedings,
- New right to prevent the entry of infringing goods in transit where such goods come from third countries,
- The rule that the trademark duration shall be counted from the date of filing instead of the granting date.

Further, it has been proposed to maintain the principle of ex-officio examination of relative grounds of refusal according to which the National IP Office has the power to refuse applications on the basis of its own ex-officio examination on grounds of identity or confusingly similarity with prior trademarks.

Additional to that the Government has opted to implement the Directive to its full extent, including article 45 of the Directive (procedure for revocation or declaration of invalidity) the implementation of which was only mandatory by January 14, 2023.

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