RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/117/Add.10/Suppl.1
28 June 1999
(99-2660)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  French
REVIEW UNDER ARTICLE 24.2 OF THE APPLICATION OF THE
PROVISIONS OF THE SECTION ON THE TRIPS AGREEMENT
ON GEOGRAPHICAL INDICATIONS
Responses to the Checklist of Questions1
Addendum
The Secretariat has received the following responses from the Permanent Delegation of the
European Commission in a communication dated 31 May 1999.2
_______________
Supplement
Responses from Portugal3
REPLIES TO QUESTIONS IN DOCUMENT IP/C/13
A. GENERAL
1. Is protection for geographical indications provided through unfair competition law, e.g.,
passing off, false designation of origin; through a fo rmal procedure for notification/registration before
protection is available; or th rough both?  Does the recognition of  a geographical indication require
registration?
In Portugal, protection for geographical indications is provided through unfair competition
law and special registration.
The recognition of a geographical indication depends on registration.  However, the
indication of source does not depend on registration.
2. Is there one single regime of protection of ge ographical indications for all products?  If not,
identify the different regimes.
In Portuguese law, there is one single regime of protection for geographical indications.
                                                     
1 Documents IP/C/13 and IP/C/13/Add.1.
2 These responses supplement those reproduced in document IP/C/W/117/Add.10.
3 Responses to questions in document IP/C/13 only.
This document cancels and replaces the documen t IP/C/W117/Add.10/Suppl.1, dated 28 June 1999.IP/C/W/117/Add.10/Suppl.1
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3. Do(es) the regime(s) of prot ection of geographical indicati ons also extend to services?
The protection of geographical indications extends only to products.
4. What provisions of law or  regulations are directed to  the recognition of geographical
indications required by Articles 22.2 and 23.1 of the TR IPS Agreement?  Citati ons to laws should be
provided and, if the texts of the laws have not been notified to the WTO, copies should be providedpursuant to Article 63.2.
In Portuguese law, the protection of geographical indications is governed by the Industrial
Property Code (Article 249.3-5, Articles 250-254 and, as far as criminal offences are concerned
Articles 260(f) and 269(c)).
5. If the required recognition of geographical i ndications is not provided through statutes or
regulations, please explain, in detail, the mec hanism or mechanisms thr ough which the protection
required is provided.
The recognition of geographical indications is provided through the Industrial Property Code,
specifically in the articles mentioned in the response to Question 4.
6. Please provide a few examples of domestic ge ographical indications protected in accordance
with the means discussed above and indicate the means by which such protection is provided.
Examples of protected domestic geographical indications:
- Cabrito da Gralheira – Regulation (EEC) 2081/92 and Desp. Nor. 293/93 of
1 October;
- Citrinos do Algarve – Regulation (EEC) 2081/92 and Desp. Nor. 293/93 of
1 October;
- Azeites do Norte Alentejano – Regulation (EEC) 2081/92 and Desp. Nor. 293/93 of
1 October;
- Vinho Regional Alentejo – Decree-Law 429/86 of 29 December .
7. Is the higher level of protection required fo r wines and spirits under Article 23.2 of the TRIPS
Agreement provided for any other product?  If so, please specify such products and the law under which
they are protected.
The protection required under Article 23.2 of the TRIPS Agreement is provided for all
products.  This follows from the protection for geographical indications provided in the articles
mentioned in the response to Question 4.
B. DEFINITION AND CRITERIA FOR RECOGNITION
8. How are geographical indications defined?
Geographical indications are defined in Article 249.3 of the Industrial Property Code.IP/C/W/117/Add.10/Suppl.1
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9. Would such a definition comprise geographical  indications identifying products of a certain
quality or reputation which are indirectly linked to a specific region?
This definition comprises geographical indications identifying products of a certain quality or
reputation which are indirectly linked to a specific region.
10. In determining whether recognition should be  given a geographical indication, what criteria
are considered?
The criterion used in determining whether recognition should be given to a geographical
indication is that of truth.
11. Is there any human creativity involved in the making of specific products under protection by
the system of geographical indica tions?  If so, how much?  And do these products involve any human
factors?
The definition of geographical indications does not provide for the presence of human factors,
including human creativity, in the making of specific products.
12. Are there any other intellectual property rights involved, such as patents for example?
There is no legal relation in this respect between geographical indications and other
intellectual property rights, such as patents.
13. What authority, if any, may define the geographic region or area for which rights are claimed
and on what basis is such definition made?
Natural or legal persons, public or private, must take the initiative in establishing
geographical indications.  However, their recognition is a matter for the public authority set up underthe Industrial Property Code.
14. Does your legislation contain criteria fo r homonymous geographical indications for wines?
The Portuguese legislation does not have any specific criteria for homonymous geographical
indications for wines.  When it is possible to avoid confusion between two homonymous geographical
indications, the general rule is applied.  Both will be registered under Article 253(d) of the Industrial
Property Code.
15. Does your national legislation provide for recognition and protection of geographical
indications or appellations of origin of foreign countries?
The national legislation provides for recognition and protection of geographical indications or
appellations of origin of foreign countries in Article 254.3 of the Industrial Property Code.
16. Is there any specific prohibition in the le gislation/regulations/rules/procedures covering
geographical indications not protected in the country of origin?  If so, please specify the relevant
statutory provision.
Portuguese law does not provide for the protection of geographical indications not protected
in the country of origin.IP/C/W/117/Add.10/Suppl.1
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C. PROCEDURE FOR RECOGNITION
17. With respect to any formal system for r ecognition of geographical indications, must the
applicant be a governmental organization or can a private entity own the rights to a geographical
indication?
A government organization or a private entity can own the rights to a geographical indication.
18. What are the competent authorities where th e protection of a geographical indication can be
obtained?
The National Institute of Industrial Property is the competent authority for registering a
geographical indication.
19. Do the procedures which lead to the rec ognition of a geographical indication take place
ex officio or must they be based on the initiative of an entity or person?
The initiative in registering a geographical indication is taken exclusively by the persons so
authorized.
20. What, if any, fees are involved in the applic ation and maintenance of rights in a geographical
indication?
The fees involved in applying for and maintaining rights in a geographical indication are
Esc 18,950 and Esc 14,650 respectively.
21. If criteria must be set out in an applicati on for recognition of a geographical indication, are
those criteria purely geographic in nature?
The criteria set out in an application for recognition of a geographical indication are purely
geographic.
22. What other criteria, if any, must be set out in an application for recognition of a geographical
indication?
The geographic criterion must be accompanied by criteria of reputation, quality or some other
characteristic relating to the geographical indication.
23. What information must be supplied in an applic ation for rights in a geographical indication?
The information to be supplied is that specified in Article 252 of the Industrial Property Code.
24. Must the goods or services with respect to which a geographical indica tion is claimed be set
out?
The goods with respect to which a geographical indication is claimed must be set out.IP/C/W/117/Add.10/Suppl.1
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25. What mechanisms are provided to oppose the r ecognition of a geographi cal indication?  How is
an investigation conducted after such a complaint?
The recognition of a geographical indication may be opposed before the administrative
decision is taken.  After the decision has been taken, an appeal may be lodged within three months ofadministrative publication.
The registration of a geographical indication may also be the subject of revocation
proceedings.
26. Who can oppose the recognition of a geographical indication?
Anyone with a legitimate interest may oppose the recognition of a geographical indication.
27. If your national legislation provides for r ecognition and protection of geographical indications
or appellations of origin of foreign countries, what is  the procedure that has to be followed in order to
obtain such recognition and consequent protection?
The procedure to be followed to obtain recognition and protection for geographical
indications and appellations of origin of foreign countries is the same as for Portuguese geographical
indications and appellations of origin.
D. 
MAINTENANCE
28. How long does recognition for a geographical indication continue?
The recognition of a geographical indication continues indefinitely.
29. If recognition of a geographical indication must be renewed or reaffirmed, what  information
must be provided in order to effect such a rene wal or reaffirmation?  Specify any fees involved in
renewal or reaffirmation.
Geographical indications do not need to be renewed or reaffirmed.
30. Must a geographical indication be used in order to maintain rights?  If so, how is such use
determined?
The Industrial Property Code does not require a geographical indication to be used in order to
maintain rights.
31.  Is there a specified limit for non-use before ri ghts in a geographical indication cease and, if so,
what is that limit?
There is no specified limit for non-use of a geographical indication.
32. Who monitors the use of geographical indications to determine if the crit eria identified in the
application continue to be met?
The registration authority does not have a monitoring function.  However, the corresponding
products may be monitored by the competent authorities.
33. If a government entity is responsible for m onitoring the use of geogr aphical indications, what
are its procedures for doing so?IP/C/W/117/Add.10/Suppl.1
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The government entity is responsible for monitoring the qualities of the products by means of
technical examinations which serve for authorizing the use of geographical indications.
34. Are there means by which interested partie s may request termination of a geographical
indication based on non-use or failure to maintain th e criteria identified in the application?  Describe
the procedure.
The forfeiture (lapse) of geographical indications is provided for in Article 256 of the
Industrial Property Code.  This article does not refer to non-use but as grounds for forfeiture the
transformation of a geographical indication into a generic name is mentioned.  This procedure does
not apply to viticultural products.
35. Do the procedures which lead to forfeiture of a geographical indicati on take place ex officio or
must they be based on the initiative of an entity or person?
The application for forfeiture must be lodged with the National Institute of Industrial Property
at the initiative of an interested party;  the procedure is an administrative one and there is provisionfor appeal.
E. 
SCOPE OF RIGHTS AND USE
36. May anyone who meets the criteri a submitted to obtain recogniti on of a geographical indication
use that geographical indication after recognition is given or must additional criteria or procedures be
followed by that party before use is permitted?
Anyone who meets the criteria submitted to obtain recognition of a geographical indication
may use that geographical indication without having to follow additional criteria or procedures.
37. Who makes the determination regarding use of  a geographical indication by particular parties,
the entity responsible for the recognition or the entity that obtained the recognition?
The entity that obtained the recognition makes the determination regarding use of the
geographical indication.
38. Are there fees involved in receiving authori zation to use a particular geographical indication
and, if so, what are those fees  and how are they established?
See response to Question 20.  The geographical indication may not be considered to have
been registered until the fees have been paid.
39. If there is a dispute regarding use of a ge ographical indication by a particular party, what
procedures are followed to resolve it?
If a dispute concerning continuity of use arises among the users of a geographical indication,
it is the entity which obtained recognition that decides it.  However, if the dispute involves third
parties, the procedure followed to resolve it is de termined by the administration, with the possibility
of appeal.
40. Must individual authorized users of a geograph ical indication use that geographical indication
continually to retain their right to use it and, if s o, how is their use determined and how long will disuse
be permitted?IP/C/W/117/Add.10/Suppl.1
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Authorized users do not have to use the geographical indication continually to retain their
right to use it.
41. If there is a dispute over c ontinuity of use by a particular party, how is it resolved?
If there is a dispute over continuity of use, it must be resolved by the entity which granted
recognition of the geographical indication.
42. Does the regime for protection of geographical indications allow geographical indications to be
licensed and, if so, what conditions are imposed on such  licenses?  If such conditions are not met, what
is the effect on the geographical indication?
The protection regime does not allow geographical indications to be licensed.
43. How is "grandfathered use" of a geographical indication, under Article 24.4 of the TRIPS
Agreement, applied in your country?
Portuguese law does not recognize the principl e of Article 24.4 of the TRIPS Agreement and
its deletion from the Agreement is therefore proposed.
In Portugal, there are no specific cases that would permit the application of this Article.
F. RELATIONSHIP TO TRADEMARKS
44. What steps are taken to ensure that, in rec ognizing a geographical indication, the obligations of
Article 16.1 of the TRIPS Agreem ent are not nullified and impaired?
The registration and maintenance of the registration of a mark do not prejudice the subsequent
protection of geographical indications.  Nor is annulment possible.  Accordingly, the Industrial
Property Code does not provide for this eventuality (see Articles 33 and 214 of the Industrial Property
Code).
45. What steps are taken to ensure that, in rec ognizing a geographical indication, the obligations of
Article 16.2 and 16.3 of the TRIPS Agr eement are not nullified and impaired?
The protection of geographical indications is based on Article 189 of the Industrial Property
Code concerning the registration of trademarks.
46. What procedures are foreseen in case of a conflict of a geographi cal indication with a
trademark?
The complaint through official channels, with the possibility of appeal, follows the procedure
provided in the case of trademark disputes.
G. ENFORCEMENT
47. How are rights in the geographical indication en forced?  Are provisions available under unfair
competition law?  Trademark law?  Other laws?  Provide citations to the laws and, if they have not been
notified under Article 63.2 of the TRIPS Agreement, please provide copies.
There are means of enforcing rights in geographical indications.  These can be found in the
law on unfair competition (Articles 260(f) and 299(c)), in the law on trademarks (Article 189(l)) and
in the law on geographical indications (Article 253(d)).IP/C/W/117/Add.10/Suppl.1
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48. Who has the right to enforce a geographical indication?
Anyone with a legitimate interest.
49. What judicial or administrative bodies have ju risdiction over enforcement actions related to
geographical indications?  Are there fees involved and, if so, what are those fees?
To enforce a right in a geographical indication application should be made, in the first
instance, to the National Institute of Industrial Property, which is an administrative body, and to the
courts.  At the administrative level there are no fees payable.  However, there is a special law setting
out the fees payable for making a judicial appeal.
50. Must the public be notified of the existence of a geographical indication and, if so, how and how
often?
The public is informed of the existence of a geographical indication through the Industrial
Property Bulletin which is publishe d monthly as an appendix to the Diario da Republica  (Official
Journal).
51. Is unauthorized use of a geographical indication subject to criminal action and, if so, describe
the procedures.  If the law has not been notified pu rsuant to Article 63.2 of the TRIPS Agreement, please
provide a copy.
Unauthorized use of a geographical indication can be subject to criminal action.  In this case,
the charge is brought by the public prosecutor with or without notification of interested parties.  Thecase is tried in the criminal courts.
H. 
INTERNATIONAL AGREEMENTS
52. Is your government party to an international, including bilateral or plurilateral, agreement for
the notification and/or registration of geographical indications?  If so, please name the international
agreement and explain the relationship be tween it and your national legislation.
Portugal is party to the following international and bilateral agreements which have been
negotiated and concluded in order properly to define the protection accorded to appellations of origin
and geographical indications:
- Paris Convention;
- Madrid Agreement on false indications of sources;- Lisbon Agreement;
- Bilateral Agreement with Spain;
- Bilateral Agreement with Hungary;
- Bilateral Agreement with Switzerland;
- Bilateral Agreement with Czechoslovakia.
53. What other international agreements, if any , have been entered into?  What do those
agreements provide?
There are no other international agreements on this subject.
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