New Intellectual Property Court: first few months prove disappointing

Portugal

Decree-Law 67/2012, which provides for the creation of the new Intellectual Property Court, was published on March 20 2012. According to its preamble, the intention of the Portuguese government was to re-allocate judicial proceedings, as well as to ease the workload of the commercial courts and reduce the number of cases pending before them.

Pursuant to the decree-law, all judicial proceedings regarding copyright and industrial property rights are now concentrated in the new Intellectual Property Court, located in Lisbon; in the past, cases involving industrial property rights used to be decided by the commercial courts, while cases involving copyright were heard by the ordinary courts.

Although the new Intellectual Property Court started operating only at the end of March, there have already been several complaints regarding its effectiveness - or lack thereof. During its first four months, the court only consisted of one judge (who has recently been replaced) for all judicial proceedings from all over the country, despite the fact that the decree-law provided for the appointment of two judges.

It is estimated that, from the end of March until July 20, 244 judicial proceedings have been filed before the Intellectual Property Court. Criticism concerning the functioning of the court continues to pour in, emanating from judges, lawyers, IP experts, and natural and legal persons.

The delay in the adoption of judicial decisions has had a very negative impact, particularly in pre-trial procedures, since their usefulness strongly depends on the efficiency and speed of the judicial system. Critics thus argued that the previous system - in which specialised branches in the commercial or civil courts heard cases involving copyright or industrial property rights - should have been maintained.

Moreover, the existence of only one court located in Lisbon implies pointless, long and costly journeys to the capital whenever a party is involved in a dispute regarding trademarks or copyright. This makes little sense since - as noted by the former president judge of the Lisbon Commercial Court, Mrs Maria José Costeira - the majority of companies that appeal to the Intellectual Property Court are generally located in the North of Portugal (ie, far away from Lisbon).

In response to these criticisms, the Portuguese Ministry of Justice has issued a press release promising that all necessary measures would be adopted after the completion of the court's first evaluation.

The new Intellectual Property Court thus seems to be a flop, even though its mentors promised a specialised approach to IP issues. However, the first few decisions show exactly the contrary - namely, a total lack of preparation in this field. Curiously, the last decisions of the court have been better, as they followed a decision issued by the Appeal Court of Lisbon during the summer.

Once again, the example of the Intellectual Property Court demonstrates that any reform of the court system should be prepared with care, and tested by lawyers and judges before entering into force.

Manuel Lopes Rocha and Joana Trigueiros Reis, PLMJ - AM Pereira Sáragga Leal Oliveira Martins Júdice E Associados - Sociedade De Advogados - RL, Lisbon

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