Pioneering IP court is created

Two years after the coming into force of the law implementing the IP Rights Enforcement Directive (2004/48/EC)), Portugal's IP system is now faced with another turning point. In April 2010 the creation of a new Intellectual Property Court, located in Santarém (65 kilometres from Lisbon), was announced. Although very little is known about this initiative, it is thought that the court will have jurisdiction over all matters involving trademarks, patents and other industrial property rights, as well as copyright and neighbouring rights.
The practice developed over the past two years under the new enforcement law shows that judges correctly apply the new rules on interim measures and compensation for damages. However, with regard to industrial property issues, the main problem is that all civil IP matters are heard by two commercial courts. As these two courts also have competence in the field of insolvency, decisions in IP cases are often delayed.
Nevertheless, practitioners consider that the creation of a specialized IP court may not solve these problems for industrial property matters, and may even create new issues for copyright matters. It is believed that, if the court hears all pending proceedings in all IP cases, it will be overwhelmed within a few months. Moreover, it seems that the court will consist of only a small number of judges.

The new IP court is unique in the world - that is, no other court has competence over all IP cases. It appears that the Portuguese legislature was inspired by the Italian example: in that country, specialized sections were created in certain courts to decide both copyright and industrial property matters. However, the Italian system consists of 12 specialized sections in 12 different courts, as opposed to one specialized court in Portugal.
Finally, there are some concerns as to the expertise of the judges that will join the new court. It is believed that the magistrates currently working in the commercial court of Lisbon, who have a vast experience in trademarks and patents matters, will not be part of the specialized court. Arguably, a solution would be to increase - as was done in Italy - the number of specialized judges within the territory, as well as the number of judges in the commercial courts.  
Manuel Lopes Rocha, PLMJ - AM Pereira Sáragga Leal Oliveira Martins Júdice E Associados - Sociedade De Advogados - RL, Lisbon

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