World Intellectual Property - IP Laws - Portugal
Protection of Geographical Indications:
Over the past few years, geographical indications have been internationally recognized as having an important place alongside other distinctive signs. European Union Council Regulation on the Protection of Geographical Indications and Designations of Origin for Agricultural Products and Foodstuffs predated the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. While Section of II of the TRIPS Agreement includes provisions relating to trade marks and Section III includes provisions on geographical indications, the TRIPS Agreement deal with the international protection of geographical indications within the framework of the World Trade Organization (WTO).
The Paris Convention for the Protection of Industrial Property and the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration also provide for the protection of geographical indications. The Industrial Property Law includes some provisions regarding the registration procedure for indications and appellations for products not included within the scope of the European Union Council Regulation. In general, while a trade mark is defined as a sign used by a certain company to distinguish its goods or services from those of other companies and the trade owners has the right to forbid others from using the same trade, a geographical indication informs consumers that a product is produced in a certain place and has certain characteristics that are due to that place of production. Hence, Geographical Indications and Trade Marks have similar goals, one of them being to avoid consumer deception regarding products.
In a case, a North American Company, Anheuser-Busch challenged the decision of the Supreme Court of Justice in the European Court of Human Rights (ECHR) to refuse Portuguese trade mark application 'Budweiser' (word mark) for beers and considered that "Ceskebudejovicky Budhvar" is protected for beers in Portugal due to the bilateral Agreement on the protection of Indications of Origin, Appellations of Origin and other Geographical Indications which came into force in 1987. However, the North American company alleged that by enforcing the provisions of the Bilateral Agreement, the Supreme Court of Justice confiscated or expropriated the trade mark for Portuguese Patent and Trade Mark Office in 1981 i.e. six years before the Bilateral was enacted and argued that a trade mark application, although not yet granted by a final decision, should be considered as an asset, thus setting aside the Supreme Court decision for confiscation or expropriation of its asset - the trade mark Budweiser.
The ECHR in its decision held that the trademark Budweiser is well-known worldwide and has a certain economic value and there is no doubt that it is an asset. However, a trade mark can only be considered as an asset after registration is granted by a final decision according to the applicable rules of the state where the registration was applied for. Before the registration is granted, all the applicant has, is a hope of obtaining such an asset, but not a legitimate hope protected by the law. In this regard it is not relevant that Bilateral Agreement was enacted after the trade mark in question was filed. In fact, at the time this Agreement was enacted, the applicant did not yet have any asset. Therefore, thye Portuguese Supreme Court of Justice decision cannot be qualified as an interference with Anheuser-Busch's rights. Following this decision, the debate over international trade rules on the extension of Geographical Indications and protection mechanisms for prior trade marks and generic names may continue.
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