IP Rights Enforcement Law enters into force - at last
The new IP Rights Enforcement Law (16/2008), which implements the IP Rights Enforcement Directive (2004/48/EC), has entered into force. It was published in the Official Gazette on April 1 2008.
The new law, which was approved by Parliament unanimously, represents a turning point in the country's approach to the enforcement of IP rights and puts an end to years of uncertainty on the issue. For example, for many years Portugal's IP legislation has been ambiguous as to the role of the legislature in the fight against piracy. This legislation was influenced by a conservative ideology whereby Portugal, as a 'poor' country, could not protect IP rights efficiently. However, the government is now planning to turn Portugal into a 'knowledge society', following the lead of countries like Finland or Ireland.
The new law amends the Copyright Act and the Industrial Property Act. In general terms, it implements the provisions of the directive accurately and includes all the remedies provided under the directive (eg, orders for disclosure or discovery, orders for the preservation of evidence, interim injunctions, Anton Piller orders, penalties for non-compliance, destruction of counterfeit goods and publication of judicial decisions).
The new law brings about two significant changes. First, it introduces a new rule under which judges must take into account the purpose of IP rights in reaching their decision. Under the rule, an IP rights owner must be able to protect its rights in a design, patent, trademark or any other IP right during judicial proceedings. This new rule aims to stop a practice adopted by certain local courts, whereby the defendant was allowed to continue infringing an IP right until the court reached a final decision. In practice, this constituted a 'judicial licence' to infringe.
Second, the law introduces a new set of rules on damages. Previously, penalties for infringement were extremely low in Portugal. Although the law does not provide for punitive damages, it sets out criteria to help the courts grant more realistic damages. Infringers will be ordered to pay the legal costs incurred by the IP rights owner and the pecuniary damages will be higher. The president of the Supreme Court has stated in public that Portugal must now face the issue of the introduction of punitive damages, and not only in the field of intellectual property.
Manuel Lopes Rocha, AM Pereira Sáragga Leal Oliveira Martins Júdice E Associados - Sociedade De Advogados - RL, Lisbon
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