New IP Rights Enforcement Law – encouraging first results


The Portuguese courts are now applying the provisions of the new IP Rights Enforcement Law (16/2008), which came into force on April 1 2008. The law implemented the IP Rights Enforcement Directive (2004/48/EC) and amended both the Industrial Property Act and the Copyright Act (for further details please see "IP Rights Enforcement Law enters into force - at last").

However, the vast majority of cases heard by the courts predate the entry into force of the law. Therefore, it is difficult to assess the impact of the most significant changes in the law - in particular, the new rules on damages.

The first IP cases filed before the local courts since the entry into force of the law concerned mainly the record and software industries, and principally resulted in the issuance of Anton Piller orders. Since April 1 2008 it is estimated that 100 new IP cases have been filed in the Portuguese courts. Local practitioners have not been disappointed by the first decisions. Although the practice has not changed with regard to interim measures, under the new law the courts now have the power to order the seizure of the alleged infringer's accounts. It is expected that this change will significantly benefit trademark owners.
Another important change concerns the jurisdiction of commercial courts over trademark matters. Previously, Portugal had only two commercial courts (in Lisbon and Gaia, in the north of the country) with jurisdiction over trademark cases; however, trademark owners may now file suit in a number of other courts.
Practitioners hope that the courts will now increase the amount of compensation awarded to IP rights owners. In light of recent decisions, it may be concluded that the judges understand and apply the new framework correctly. 
Manuel Lopes Rocha, AM Pereira Sáragga Leal Oliveira Martins Júdice E Associados - Sociedade De Advogados – RL, Lisbon

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