Protecting IP ownership and rights in Portugal: 5 things employers need to know
In today’s fast-moving business landscape, your company’s intellectual property (IP) can make or break your momentum and competitive advantage. Portugal offers a robust legal framework and mechanisms to protect IP. However, the intricacies can be complex, especially when navigating it from abroad.
If you plan to hire employees or contractors in Portugal, you must understand the legal landscape and tools to protect your innovations, trademarks, copyrights, and trade secrets. This guide will cover best practices, potential challenges, and other critical information so you can protect your IP rights and ownership, avoid legal disputes, and protect your brand’s reputation.
Read on to learn more about how to protect your company's IP rights and ownership. (Note: This guide is for informational purposes only, and isn’t intended to provide legal advice.)
1. NDAs are enforceable in Portugal
NDAs are legally binding contracts that establish a confidential relationship. In the workplace, NDAs can protect trade secrets and private information from competitors, including IP.
NDAs are protected under Portuguese law. NDAs may protect trade secrets, which are defined as information that is not generally known or easily accessible, has commercial value, and has been reasonably kept secret by the person or entity lawfully in possession of the trade secret (in this case, the employer/owner of the IP). NDAs can also protect intellectual property, business strategies, internal processes, client information, and confidential agreements with third parties.
However, for violation of an NDA to constitute “unfair competition,” competition must exist. What’s more, according to both European and Portuguese law, NDAs don’t cover unlawful content, and cannot silence whistleblowers or victims of workplace harassment or discrimination.
2. Portuguese laws also protect trade secrets and IP
An NDA can help enforce IP protection, but Portugal has a well-established legal framework to further protect IP rights. Both national legislation and international agreements ensure the protection and enforcement of IP rights:
The Labour Code of Portugal obligates employees to be loyal to their employers. According to this code, employees may not negotiate on behalf of their competitors or harmfully disclose information about the organization, production methods, and business.
Article 195 of the Criminal Code imposes a prison sentence of up to one year or a fine of up to 240 days for those who reveal a secret that they become aware of through their condition, employment, office, profession, or art.
Article 196 of the Criminal Code imposes up to a year imprisonment or a fine of up to 240 days for those who take advantage of a secret relating to the professional, industrial, commercial, or artistic activity of another person or business without consent and, by doing so, damages them. If an employee discloses a trade secret intending to cause damage or if they disclose the secret information through the media, punishment may include imprisonment of up to one year and four days or a fine of up to 320 days.
The Industrial Property Code (IP Code) of Portugal includes the protection of undisclosed know-how and confidential business information from unlawful acquisition, use, and disclosure.
3. Patents and other measures can further protect your innovations
In Portugal, as in many parts of the world, patents protect inventions and provide exclusive rights to commercially exploit an invention for a limited period. Patents include supplementary protection certificates (SPCs) for medicines and plant protection products, as well as utility models (UMs). Patents last up to 20 years from the date of the patent application, with UMs lasting up to 10 years. The Portuguese Institute of Industrial Property (INPI) registers and protects industrial property rights in Portugal. This government office handles patents, trademarks, designs, and utility models.
Brands, trademarks, rewards, logotypes, company names, designations of origin (DO), and geographical indications (GIs) are also protected by the IP code, particularly if that infringement makes it likely that someone would confuse your business’s products or services with that of a competitor. While trademarks are protected under national law, trademark registration with the INPI can offer additional protection, granting exclusive rights to you and preventing others from using identical or similar marks.
Copyright protection automatically applies to original literary, artistic, and scientific works in Portugal. However, registering works with the General Inspection of Cultural Activities (IGAC) can offer additional evidence of ownership (and lowers the burden of proof if someone infringes on your copyright). Copyrights are valid for 70 years after the death of the creator. Rights related to copyright expire 50 years after the first performance, fixation of a video or film, or broadcasting.
4. International treaties enforce IP across borders
Portugal is included in various international IP treaties and agreements, such as the Paris Convention for the Protection of Industrial Property, the Madrid Agreement and Protocol for the International Registration of Trademarks, and the Berne Convention for the Protection of Literary and Artistic Works. These agreements facilitate cross-border IP protection.
- The Paris Convention applies to industrial property, including patents, trademarks, utility models, industrial designs, trade names, geographical indications, and service marks. It also regulates unfair competition. Nearly 180 countries are a part of this international agreement.
- Under the Madrid System as part of the Madrid Agreement and Protocol for the International Registration of Trademarks, you can file a single international trademark application and pay just one fee for protection in up to 130 countries. Portugal was one of the original countries included in the Madrid Agreement, signing on in 1891.
- The Berne Convention gives authors, musicians, poets, painters, and other creators the ability to control how their works are used. This includes translation, performance, and reproduction rights.
Portugal is also a member of the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO). And, as an EU member state, Portuguese IP law aligns with other EU member states, and European patents are typically enforceable.
5. Copyright ownership as an employer can be complicated unless you have a written agreement
Under the Portuguese Labour Code, the general rule is that the IP rights generated by an employee during their employment belong to the employer, as long as an invention is made during the normal course of employment as part of their job. For example, if an employee creates a phone app as part of their work, the employer is considered the owner of the rights unless explicitly stated otherwise in a contract. (Note: Intellectual creation in computer programming is particularly protected via the Computer Program Directive—the rights to computer programs created in labor agreements belong to the employer or service recipient.)
In some cases, the employee may be legally allowed to request additional remuneration if the creation exceeds the parameters of their original employment terms or if the creation of that IP results in unforeseen business advantages.
However, in Portugal, it’s still critical to outline copyright ownership in any employment agreements, and that’s especially the case when involving freelancers. In cases where no contract agreement exists, the ownership automatically goes to the intellectual creator—in this case, the contractor. If the contractor’s name is not on the work, then it’s assumed that the copyright belongs to the business for which it was created. Even then, the worker may be able to fight for the copyright and/or additional remuneration.
To be safe, always clearly outline the terms of ownership in any contracts with both employees and contractors. In that contract, consider including background on any IP owned by each part before the work arrangement as well as rules for IP generated during the work arrangement.
Frequently asked questions about IP law in Portugal
Who owns IP in Portugal: employee or employer?
Generally, intellectual property created by an employee within the scope of their work belongs to the employer. However, the law gets murky with freelancers. Therefore, employers must make sure that any employment contracts cover ownership of IP.
What is an IP assignment agreement?
An IP assignment agreement, Intellectual Property Assignment Agreement, or Patent Assignment Agreement is a legal contract that transfers the ownership rights of intellectual property from one party to another. This type of agreement may be used if a company or individual wants to acquire or transfer intellectual property rights, including trade secrets, patents, copyrights, or trademarks.
In Portugal, assignments may happen through an agreement to transfer the rights, inheritance, or a court decision.
What do I do if my intellectual property is infringed upon?
There are a few different ways to approach this. Criminal sanctions can be invoked for infringements. For example, depending on the situation, patent infringements may be considered a criminal offense and can be punished with up to 3 years of prison or a fine of up to 360 days. Certain copyright infringing actions may be punished criminally with up to 3 years of imprisonment and/or payment of 150 to 250 days fine.
Alternatively, you may consider civil court or intellectual property office proceedings. If possible, alternative dispute resolution (such as arbitration) can save time and money as opposed to going through the court system.
How can I protect intellectual property throughout the European Union country?
You can obtain rights to trademarks and design through the European Union Intellectual Property Office, which protect your ownership throughout the EU. Corresponding IP offices provide individual titles for Portugal and other member states, and a bundle of parents can be obtained through the European Patent Office. You can also consider doing international registration through the Patent Cooperation Treaty or the Madrid Protocol.
What can I do about counterfeits?
Copyright infringements, such as counterfeiting, are punishable by Portuguese law, and you could pursue criminal or civil proceedings. If infringing goods are being imported or exported, you can pursue customs enforcement of intellectual property, per regulations from the European Parliament.
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Rippling and its affiliates do not provide tax, accounting, or legal advice. This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for tax, legal, or accounting advice. You should consult your own tax, legal, and accounting advisors before engaging in any related activities or transactions.
