Emergency Decree 274/2019 has established a comprehensive system for regulating unfair competition. Many practices punished by the new unfair competition rules affect IP rights. Further, the new legislation establishes a series of provisions that are highly valued in the IP field, including the detailed regulation of comparative advertising and provisions referring to names of origin and trade secrets.
In 2019 the Trademark Law was rapidly revised without public consultation. This revision, which was relatively limited, aimed to address the problem caused by trademark applications made in bad faith and without the intention to use and to increase the powers of the courts in judicial enforcement. This article analyses what remains to be done and what a fifth revision of the Trademark Law should cover.
The Lisbon Court of Appeal recently found that the trademark BELCANTO, used by the Belcanto restaurant in Lisbon, was a "trademark with a reputation" and another party's application to register the trademark to sell wines. The judgment shows that Portuguese case law is departing from the mere quantitative parameters of assessing the reputation of a trademark to focus on the relevance of a mark's national and international recognition.
According to the Copyright Act, for copyright to subsist in a work, the work must be original and reduced to material form. However, if ideas and innovation are the result of the shared lived experience of the common person, how can it be determined whether a work is 'original' as defined in, for example, the Copyright Act? In order to be original, a work need not be innovative or new, but rather the result of the author's own skill, time and effort expended in creating the work.
The Supreme Court recently declared a Madrid Court of Appeal judgment to be final, confirming the cancellation of Carrefour's CONTINENTE trademarks and recognising Modelo's right to register and use its CONTINENTE mark in Spain. The decision supports the previous case law criterion that protection cannot be sought for trademarks which are no longer used on the market.