RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q4/PRT/1
7 June 1999
(99-2283)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  French
REVIEW OF LEGISLATION ON ENFORCEMENT
PORTUGAL1
The present document reproduces the questions put to the delegation of Portugal during the
review of legislation on enforcement at the Council's meeting of 17-21 November 1997 and thereplies given in communications dated 19 April, 20 May and 28 May 1999.
2
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I. REPLIES TO QUESTIONS POSED BY JAPAN
1. Please indicate the "competent authorities"  stipulated in Article 51 of the TRIPS
Agreement.
The Directorate-General of Customs is the competent authority.  An application for action
under Council Regulation (EC) No. 3295/94 may be lodged with the Directorate-General in Lisbon orone of its delegations in the various countries.
2. Please explain whether "proceedings leading to  a decision on the merits of the case"
stipulated in Article 55 of the TRIPS Agreement are judicial or administrative.
This matter comes under the jurisdiction of the judicial authorities (ordinary courts).
3. Are there any ways other than the application stipulated in Articles 51 and 52 of the
TRIPS Agreement (hereinafter referred to as "t he application") which enable a right holder to
request the competent authorities to suspend th e release of the goods which infringe IPRs or
which are suspected to infringe IPRs?
The only mechanisms relating to border procedures through the customs authorities in respect
of goods suspected of being counterfeit or pirated are those set forth in Articles 51 and 52 of theTRIPS Agreement.
                                                     
1 As regards the laws and regulations relevant to the areas under review and notified by Portugal under
Article 63.2 of the Agreement, reference is made to documents IP/N/1/PRT/1 and IP/N/6/PRT/1.List of abbreviations: CPC - Civil Procedure Code
PPC - Penal Procedure Code
CCC - Court Costs CodeCRRC - Copyright and Related Rights CodeIPC - Industrial Property CodeCC - Civil CodeJC - Judicial Code
2 The minutes of the meeting have been circulated in document IP/C/M/16.IP/Q4/PRT/1
Page 2
4. Please explain what term your country regar ds as a "reasonable period" within which
the competent authorities shall inform the applicant whether or not they have accepted the
application stipulated in Article 52 of the TRIPS Agreement.
Regulation (EC) No. 3295/94 states that the customs service with which an application has
been lodged must forthwith notify the applicant in  writing whether or not it grants the application.
This information must be provided in writing and as rapidly as possible.
5. Please explain the term during which the application is effective.
The application is effective for six months, renewable at the request of the right holder or his
representative.
6. Please explain whether a right holder is obliged to pay any fees to lodge the application.
A fee is charged which varies according to the period of validity of the application.
7. Please indicate provisions of laws and or dinances which prescribe the "proceedings
leading to a decision on the merits of the case" stipulated in Article 55 of the TRIPS Agreement.
And please summarize their contents.
Decisions on the merits of the case fall within the jurisdiction of the ordinary courts (civil and
criminal courts).  See Portugal's replies to the Checklist of Issues on Enforcement.3
8. Please explain the specific procedure, if any, to  be applied to the goods for which it is not
evident whether or not they infringe IP Rs, in Article 55 of the TRIPS Agreement.
At the administrative level, the customs authorities must, when in doubt, contact the right
holder or his representative in Portugal for confirmation whether or not the goods in question are
counterfeit goods.
9. Please explain the responsibility that th e competent authorities and other related
authorities take to the right holders when they fail to suspend the release into free circulation of
goods which infringe IPRs with regard to the suspension based on the application or the
ex officio action stipulated in Article 58 of the TRIPS Agreement.
Officials and employees of the central and local government may be held liable for breach of
duty, whether by action or omission (Decree-Law No. 24/84 of 16 January).
10. Please explain the responsibility that th e competent authorities and other related
authorities take to the right holders when they examine goods which infringe IPRs and
nevertheless release them into free circulation with regard to the su spension based on the
application on the ex officio action stipul ated in Article 58 of the TRIPS Agreement.
See reply to question 9.
                                                     
3 Document IP/N/6/PRT/1.IP/Q4/PRT/1
Page 3
11. Please explain the responsibility that th e competent authorities and other related
authorities take to the importer s when they suspend the release into free circulation of goods
which do not infringe IPRs with regard to the suspension based on the application on the
ex officio action stipulated in Article 58 of the TRIPS Agreement.
See reply to question 9.
12. Is the right holder informed of identities of the importers and consignors when the
competent authorities "suspend" the goods whic h infringe IPRs or which are suspected to
infringe IPRs, as well as the case where the ri ght holder is informed of identities of the
importers and consignors stipulated in Article 57 of the TRIPS Agreement?
At his request, the right holder is informed by the customs office or service which dealt with
the application of the name and address of the declarant and, if known, those of the consignee, so as to
enable the right holder to request a decision from the competent authorities on the merits of the case.This information must be consistent with the provisions governing the protection of personal data,
commercial and industrial secrecy and professional and administrative confidentiality.
13. Please explain the measures to protect conf idential information in the course of the
inspection stipulated in Article 57 of the TRIPS Agreement.  And please indicate provisions of
laws and ordinances which prescribe such measures.
The protection of confidential information is governed by the provisions concerning the
protection of personal data, commercial and indust rial secrecy and professional and administrative
confidentiality.
14. Please explain the procedures of detentions and seizures to be ordered by the competent
authorities based on Articles 51 and 55 of the TRIPS Agreement.
In the case of an ex officio action, the customs authorities must:  (i) suspend clearance, or (ii)
detain the goods for a period of three working days.  During that period, the right holder must lodge
an application for action.
If the competent authority has acted on the basis of an application for action, it must so
inform the right holder.
If within a period of ten working days following notification of the measure the customs
authority has not been informed that the matter has b een referred to the judicial authority competent to
decide on the merits of the case or that the said judicial authority has taken provisional measures, the
goods are released.
15. Please explain the procedures to appeal aga inst any decisions ordered by the competent
authorities based on Articles 51 and 55 of the TRIPS Agreement.
Refusal to grant customs action is subject to hierarchical remedy.
Where a procedure on the merits has been initiated, it is possible to request an appeal in
conformity with the provisions of Portuguese crimin al law.  Any legal person who has been adversely
affected by the first instance decision is entitled to lodge an appeal.
16. Please explain the basis for calculating the s ecurity or equivalent assurance stipulated in
Article 53 of the TRIPS Agreement that the competent authorities may require of an applicant
when they suspend the relea se into free circulation.IP/Q4/PRT/1
Page 4
There is no particular method of calculation.
17. Please explain who shall pay the cost of detentions based on Article 51 of the
TRIPS Agreement or destruction stipulated in Article 59 of the TRIPS Agreement.
The costs are charged to the right holder.
18. Please explain what kind of cases are regar ded as the "exceptional circumstances" in
which the competent authorities may allow re-exportation of counterfeit trademark goods
stipulated in Article 59 of the TRIPS Agreement.
Under Regulation (EC) No. 3295/94, counterfeit trademark goods may never be re-exported
in an unaltered state.
19. Please indicate names of laws and ordinances and their provisions in which the
suspension of the release of goods which infringe  IPRs or are suspected to infringe IPRs is
prescribed, as stipulated in Article 51 of the TRIPS Agreement.
Regulation (EC) No. 3295/94, which applies dire ctly to Portugal, and Decree-Law No. 161/95
of 24 January approving the Industrial Property Code.
20. Please indicate which IPRs are protected based on the application by a right holder.
The following intellectual property rights are protected:  copyright and related rights,
trademarks, logos, appellations of origin and geographical indications, and industrial designs.
21. Please explain kinds and contents of documents which shall be provided by the applicant
to lodge the application.
Applications by right holders or claimants must contain justification of ownership and a
description of the goods.  In the case of applications submitted by an agent, a power of attorney must
also be attached.
22. Please explain the remedies which the judici al authorities order regarding copyright and
other related rights, patents, industrial designs, trademarks and layout designs (topographies)
of integrated circuits, including injunctions, damages, expenses, destruction or other disposal of
infringing goods and materials/implements for their production.
Under Articles 382 to 392 of the CPC, the judicial authorities may order provisional
measures.  They may also order the following remedies in connection with enforcement:
- Injunctions (Decree-Law No. 409/93 of 10 December, also applicable to intellectual
property rights);
- damages (Articles 566 et seq.  of the CC);
- destruction of infringing goods and materials/implements for their production
(Articles 178 and 186 of the CPC and Article 201 of the CRRC).
23. Please explain whether the amount of dam ages which judicial authorities order the
person who infringes IPRs to pay the right holder is adequate compensation for the injury the
right holder has suffered, and what criteria and the way for calculation to decide the amount for
compensation.IP/Q4/PRT/1
Page 5
The system of compensation is set forth in the Civil Code (Articles 562 et seq.), and is based
on the principle of restoring the situation to what it would have been if the damage had not taken
place.
24. Please explain whether the amount of damage s which judicial authorities order a person
who infringes IPRs to pay the right holder includes investigations expense and appropriateattorney's fees.
Damages do not include procedural expenses or attorney's fees.
25. Please describe to what extent the amount of damages has been estimated by courts
since 1 January 1996.  Please explain whether th e amount of damages is adequate compensation
for the injury the right holder has suffered, and how such civil procedures are consistent with
Article 45 of the TRIPS Agreement.
There is no data currently available to answer this question.  However, this area falls under
the exclusive jurisdiction of the court judge in each case, in accordance with the limits laid down by
the Civil Code.
26. Please explain the kinds and amounts of penalties (imprisonment or fines) in criminal
cases.  Please also explain whether these penalties are consistent with Article 61 of the
TRIPS Agreement, which requires provisions for a sufficient deterrent, consistently with the
level of penalties applied for crimes of a corresponding gravity.
We consider that the penal sanctions applicable – imprisonment (up to three years) and fines –
meet the requirements of Article 61 of the TRIPS Agreement.
II. REPLIES TO QUESTIONS POSED BY THE UNITED STATES
General obligations
1. Articles 41.1 and 42 of the TRIPS Agreement require that procedures be available for
the effective enforcement of the intellectual prop erty rights covered by the Agreement.  Please
describe the structure of the judicial and administrative4 procedures in Portugal in which
parties can enforce their intellectual property ri ghts, at local, provincial and national levels,
indicating the jurisdiction of each type of court or administrative body and explaining the
interrelationships, if any, of the various types of courts and administrative bodies.  Cite the laws
or other authorities establishing the structure, including each type of court and administrative
body.
The judicial and administrative procedures for the enforcement of intellectual property rights
are applied by the General Inspectorate of Economic Activities (administrative procedures), by the
public prosecutor and by the courts (judicial procedures).
The following legislation is applicable in this area:- Copyright and Related Rights Code, Decr ee-Law No. 63/85 of 14 March as modified
by Decree-Law No. 114/91 of 3 September;
                                                     
4 These questions apply to both judicial and administrative enforcement of intellectual property rights
because of Article 49 of the TRIPS Agreement.IP/Q4/PRT/1
Page 6
- Industrial Property Code, Decree-Law No. 15/95 and Decree-Law No. 16/95 of
24 January;
- General Regime for Violations, De cree-Law No. 433/82 of 27 October and
Decree-Law No. 244/95 of 14 September;
- Economic and Public Health Offences , Decree-Law No. 28/84 of 20 January;
- Internal Organization of the General Inspectorate of Economic Activities,
Decree-Law No. 269-A/95 of 19 October;
- Internal Organization of the Public Prosecut or's Office, Law No. 47/86 of 15 October;
- Internal Organization of the Judicial Courts, Law No. 38/87 of 23 December;
- Civil Procedure Code, Decree-Law No. 239-A/95 of 12 December as amended by
Decree-Law No. 180/96 of 25 September;
- Criminal Procedure Code, Decree-Law No. 78/87 of 17 February as amended by
Decree-Law No. 317 of 28 November;
- Court Costs Code, Decree-Law  No. 224/96 of 11 November.
2. Please describe briefly the procedure that must be followed by a foreign party to initiate
an enforcement procedure in each of the courts and administrative bodies identified in responseto question 1 and cite the legal authorities establishing those procedures.
The procedures are the same, regardless of the nationality of the party, and the applicable
laws are those mentioned above.
3. Please identify any requirement that a foreign party must meet to initiate a proceeding in
the courts and administrative bodies identified in answer to question 1 that is not required of anational or resident of Portugal and cite the legal authorities providing for those differences.
Portuguese procedural law does not make any distinction as to the nationality of the parties.
4. Articles 41.1 and 48 of the TRIPS Agreement require establishment of safeguards
against abuse of judicial and administrative enforcement procedures, including provision foradequate compensation for injury suffered because of such abuse.  Please describe the meansavailable under the law of Portugal to prevent abuse of judicial and administrative proceduresor to remedy damages suffered as a result of such abuse and cite the legal authorities for thosemeans.
Officials and agents of the central and local administrations are liable for acts and omissions
involving breach of duty (in accordance with Decree-Law No. 24/84 of 16 January).  The applicable
disciplinary action is decided according to the nature of the offence and the responsibility of the agent,
without prejudice to the applicability of the penalties set forth in the Penal Code.
5. Article 41.2 addresses, among other things, the cost of judicial and administrative
enforcement proceedings.  Please describe any fees charged by judicial or administrative officialsfor filing legal actions involving intellectual property or for pursuing such actions once initiated,IP/Q4/PRT/1
Page 7
cite the legal authorities for such fees, and provide copies of the documents used to inform the
public of such fees.
There are no specific provisions governing the cost of proceedings, which vary, inter alia ,
according to the complexity of the case and the number of parties involved.
Articles 1 and 32 of Decree-Law No. 224-A/96 of 26 November - CCC (Court Costs Code)
- and Articles 446 to 449 of the CPC (Civil Procedur e Code) lay down the general rules applicable in
this area.
In particular, under Article 446 of the CPC, the costs of a case are paid, as a rule, by the
losing party.  The costs relating to legal representatives' fees may also be paid, by order of the court,
upon the request of the winning party (Article 454 of the CPC).
The guarantee of payment of costs is regulated by Article 455 of the CPC.
6. Article 41.2 also addresses the timeliness of judicial and administrative enforcement
proceedings.  Please cite to the legal authorities establishing any time limits for judicial andadministrative proceedings and, if it has not already been done, provide copies of the laws orregulations in question.
Judicial proceedings may be brought throughout the period of validity of the intellectual
property rights.
Other time-limits are established in the laws mentioned in the reply to question 1.
7. Please explain any provisions in the enforcement system in Portugal that ensure
expeditious remedies.  In addition, please explain what provisions are available to preventdeliberate delays by the parties to a proceeding and indicate the circumstances in which suchprovisions will be applied.
Article 266 of the CPC lays down a general principle of cooperation which involves an
obligation of procedural dispatch.
In the area of criminal procedure, in particular, the law has provided, since 1988, for a
mechanism to accelerate proceedings – Articles 108 and 109 of the PPC – by which the injured party
may request the higher court to set a date on which the decision in question must be taken when the
legal time-limits are not respected.
8. Article 41.3 of the TRIPS Agreement requires that decisions on the merits of a case
preferably be in writing, the better to determine the reasoning on which the decision is based.Please state, with regard to each type of court and administrative body identified in question 1,whether judges or administrative officials must render their decisions in writing and cite thelegal authorities requiring such written opinions.
Under the Portuguese legal system, all legal decisions must be made in writing.
9. Article 41.3 also requires that decisions on the merits of a case be based only on evidence
in respect of which parties had an opportunity to be heard.  Please state, with regard to eachtype of court and administrative body identified in question 1, what factors may be consideredby a judge or administrative official in rendering a decision and cite the legal authoritiesestablishing the basis on which judges and administrative officials may reach decisions.IP/Q4/PRT/1
Page 8
Under the CPC (Article 659, No. 2) decisions of the judge must be based on the facts and the
law, on pain of invalidity of the order (Article 668, No. 1, subparagraph (b)).
10. Article 41.4 obligates WTO Members to provide for judicial review of certain judicial
and administrative decisions in intellectual property enforcement proceedings.  Please describewhat legal limitations, if any, are placed upon the ability of a party to an intellectual propertyenforcement proceeding to have both procedural rulings and final decisions reviewed by aseparate judicial authority, and cite the legal authorities providing for such reviews.
As regards the protection of intellectual property rights, there are no limitations on recourse to
judicial and/or administrative decisions.
Civil and administrative procedures and remedies
11. Article 42 requires that defendants be notified of judicial and administrative intellectual
property enforcement proceedings brought against them.  Please describe the proceduresfollowed by each type of court and administrative body identified in question 1 for notifyingdefending parties regarding proceedings that have been initiated against them, indicate theinformation provided regarding the proceeding and cite the legal authorities establishing theseprocedures.
The provisions concerning service and notification of the defendant appear in
Articles 228-263 of the CPC.
12. Article 42 also requires that parties to intellectual property enforcement proceedings
must be able to be represented by counsel and must not be subject to overly burdensomerequirements to appear personally.  Please describe any limitations under Portugal’s laws on theability of a party in  such a proceeding to be represented by independent legal counsel and any
requirements imposed on the party to appear personally in a proceeding.  Please cite the legalauthorities providing such limitations and imposing such requirements.
Possibility of representation (attorney) – Articles 72, 73 and 74 of the CRRC and Article 35
of the CPC.
Requirement to instruct counsel in most cases (Articles 32, 43 and 44 of the CPC).
The rules of civil procedure permit the parties to be represented.  Thus, the personal
appearance of the right holder before the court is not mandatory.
Conversely, in the field of criminal law, mandatory presence of the accused before the court is
an established principle.
13. Under Article 42, parties are to be entitled to substantiate claims and present relevant
evidence.  Please describe any limitations under the law of Portugal on a party’s ability tosubstantiate a claim or to present relevant evidence and cite the legal authority providing suchlimitations.
Under certain conditions, the judicial authority may limit access to items of evidence
submitted (CPC and Company Code).IP/Q4/PRT/1
Page 9
Article 3 of the CPC provides for the adversarial principle according to which the judge may
not decide on questions of law and fact unless the parties have the possibility of presenting their views
on those questions, and does not establish any exceptional limitations.
Article 2 of the same Code provides guarantees of access by parties to the courts.
14. Article 42 requires, with one narrow exception, that there be a means to identify and
protect confidential information during judicial and administrative intellectual propertyenforcement proceedings.  Please describe the means provided under the law of Portugal forparties to identify and have protected confidential information required to be presented in orderto prove their claims and cite the legal authorities providing for such identification andprotection.
Article 618 No. 3 of the CPC embodies the possibility for a person to refrain from giving
evidence before the courts, when bound by professional or state secrecy, concerning the facts covered
by such secrecy.
15. Article 43.1 of the TRIPS Agreement requires that judicial and administrative officials
be able to order a party to an intellectual property enforcement proceeding to produce relevantevidence in that party’s control identified by the opposing party when the latter party haspresented reasonably available evidence in support of its claims.  Please describe how and inwhat circumstances judges and administrative officials may order production of relevantevidence in intellectual property enforcement proceedings and cite the legal authorities providingfor such orders.
In keeping with the applicable principles, which have inspired several provisions of the CPC
(Articles 3-A, 158, 266, 266-A, 266-B and 519), the judge responsible for the case has the power to
order items of evidence considered necessary to the proper conduct of the proceedings and theestablishment of the truth to be produced.
The parties are required to cooperate to that end by providing the judge with the requested
items.
16. Information ordered to be produced, referred to in question 15, must be protected if it is
confidential.  Please describe the means provide d under the law of Portugal for protecting such
information and cite the legal authority providing for such protection, if those means differ
from those described in answer to question 14.
An exception is made to the general principle incorporated in the reply to question 15 in the
case of Article 533 of the CPC, which provides for the possibility of refusing to submit certain items
of evidence for "well-founded reasons".
Access to the records of the case and to the courtroom may be restricted under Articles 168
and 659 of the CPC.
The Commercial Code also includes a restriction in connection with the principle of
confidentiality concerning the presentation of books of account (Articles 43 and 44).IP/Q4/PRT/1
Page 10
17. Article 43.2 provides that, in the event a party refuses to provide information ordered
by the judicial or administrative officials, thos e officials may be authorized to make preliminary
and final determinations adverse to that party.  Please describe what sanctions may be imposed
on a party that refused to provide ordered information and under what circumstances those
sanctions are imposed, citing the legal authority for those sanctions.
Refusal by a party to provide information without justification may lead, according to
Article 533 of the CPC, to seizure of the documents, or, under Articles 519 No. 2, 532 and 537 of the
CPC, to the imposition of a fine.
18. Article 44.1 requires that judicial and administrative officials be able to enjoin or
otherwise prevent infringing activity by a party, including by preventing the entry of infringing
goods into the channels of commerce in their jurisd iction.  Please describe the authority of the
judges and administrative officials identified in question 1 to order parties to stop infringements
and to prevent infringing goods from entering the channels of commerce in their jurisdiction
immediately after clearance of such goods throug h customs.  In addition, please cite the legal
authorities authoriz ing such actions.
Under Article 11 of Decree-Law No. 28/84 of 20 January, of which Article 258 of the IPC
calls for the application, the judicial authorities may order, on request or ex officio, the cessation,
immediate or within an indicated time-limit, of unlawful acts against industrial property.
Where there is a risk of offence against industrial property rights, Article 45 of the IPC
applies .  This article, in conjunction with Articles 381 et seq. of the IPC, provides for protective
measures to prevent or avoid possible delays in the main action under way in the court.
Article 274 of the IPC calls for the seizure by the customs authorities of goods which violate
industrial property rights .  At the same time, Article 47 of Decree-Law No. 28/84 provides that the
seized goods may be destroyed in order to avoid further infringements of industrial property rights.
The PPC (Article 178) gives the judicial authorities the power to order the seizure of objects
that may have been used or intended to be used for the infringement of industrial property rights.
As regards copyright and related rights, under Article 201 No. 1 of CRRC the judicial
authorities must order the seizure of the copies of the usurped or counterfeit works together with any
related materials, machines or other implements or documents suspected to have been used or to have
been intended for the accomplishment of the infringing act.
The destination of all of the seized objects is established in the final judgement, and where it
has been proven that they were intended for the accomplishment of the infringing act or that they wereused to that end, they go to the State.   In such cases, the copies must be destroyed without
compensation.
In cases of  flagrante delicto , it is the administrative authorities and the police, i.e.  the
criminal investigation service, the public security forces, the Republican National Guard, the CustomsDepartment and the Directorate-General for Inspection (Economic Affairs) that have the authority to
carry out the seizure, which must be preceded by a crime.
19. Article 44.2 provides an exception to the requirement in paragraph 1 for government
use or use by third parties authorized by the government, limiting the remedy for infringement
to payment of adequate remuneration as provided  in Article 31(h).  Please describe any such
limitations on remedies in the laws of Portugal and cite the legal authorities providing for those
limitations.IP/Q4/PRT/1
Page 11
 Article 108 of the IPC provides that the patent holder may be required, for reasons of public
interest, to grant a licence for the exploitation of the invention in question .  It is the government that
has the authority to grant the licence, evaluate the appropriateness of the application and issue, by
decree, the decision establishing the appropriate remuneration in accordance with Article 31(h) of the
TRIPS Agreement.
20. Article 45.1 requires that judicial and admi nistrative officials be able to order an
infringer to pay the right holder damages adequate  to compensate for the injury caused by the
infringement.  Please describe the authority of the judges and administrative officials identified
in question 1 to order a party found to be infringing to pay the right holder damages adequate
to compensate for the injury ca used by the infringement.  Please explain the factors considered
in establishing the amount of the compensation and cite the legal authorities authorizing suchcompensation orders.
Article 483 of the Civil Code stipulates that any person who unlawfully violates an industrial
property right of another person must compensate the injured party for loss or damage suffered as a
result of violation by restoring the status quo prio r to the violation (Article 562 of the Civil Code).
Compensation for injury may be requested through a civil procedure or through a procedure
linked to the criminal act.
If it is impossible to restore the status quo ante , equivalent compensation must be provided in
the form of a pecuniary payment corresponding to  the amount of the damage caused (Article 566 of
the Civil Code).
21. Article 45.2 requires that judges and administ rative officials be authorized to order
payment of a right holder's expenses, including le gal fees.  Please describe the authority of the
judges and administrative officials identified in question 1 to order payment of right holders'
expenses, the circumstances under which such an order will be given, the factors considered in
establishing the expenses, and cite the le gal authorities authorizing such payments.
As a rule, it is the losing party that is required to pay costs (Article 446 of the CPC and
Articles 1 and 32 of the CCC) unless the court decides otherwise.
According to Article 457 of the CPC, the cour ts must provide for the payment of costs,
including legal fees .  The circumstances under which such an order is given vary according to the
importance of the court action and the work of the attorneys.
The Law establishing the Lawyers' Association defines the general principles involved .
Article 76 of the CPC provides for an action for recovery of legal fees if they are not paid voluntarily
by the losing party.
22. Article 46 requires that judges and administrative officials be authorized to order, in
certain circumstances, other remedies, including disposal of goods outside commercial channelsor destruction of goods and destruction of ma terials and implements the predominant use of
which is the creation of infringing goods.  Plea se describe the additional remedies available
under the laws of Portugal, the circumstances in  which such authority will be exercised, the
factors considered in determining the nature of  the remedies provided, and cite the legal
authorities providing for such remedies.IP/Q4/PRT/1
Page 12
The destruction of goods infringing an intellectual property right or materials/implements
used for their production is provided for in the PPC (Articles 178 and 186 No. 2), as well as in the
CRRC (Articles 201 and 202).
The Law (Decree-Law No. 433/82 of 27 Octobe r as amended by Decree-Law No. 244/95 of
14 September, and Articles 204 and 205 of the CRRC) provides for fines in the way of administrative
penalties.  
23. Article 47 provides that WTO Members may authorize judges and administrative
officials to order infringers to identify for right holders third parties involved in the production
and distribution of infringing goods or services and their channels of distribution.  Please
describe any authority judges and administrative officials have under the laws of Portugal to
order infringers to identify for right holders third parties involved in the production anddistribution of infringing goods or services and their channels of distribution and describe the
circumstances in which this authority would be exercised.  Please cite the legal authorities
providing for such remedies.
Our legal system does not provide for this possibility.
24. Article 48.2 permits WTO Members to exempt public authorities and officials from
liability from remedies only where their actions were taken or intended in good faith in carrying
out their responsibilities under the law.  Please explain any exemption provided public
authorities and officials from liability for abuse of enforcement procedures, describe thecircumstances in which such limitations would no t apply, and cite the legal authorities granting
such exemptions.
Administrative officials and employees may be held liable under Decree-Law No. 24/84 of
16 January.
Provisional measures
25. Articles 50.1 and 50.8 require that judicial and administrative authorities have the
authority to order prompt and effective provisiona l remedies to prevent an infringement of any
intellectual property right.  With respect to each intellectual proper ty right identified in
Article 1.2 of the TRIPS Agreement, please identify the provisional measures available to
protect intellectual property rights.  Please ci te the relevant legal authority establishing those
provisional remedies.
The CPC (Article 381) authorizes the judicial authorities (the judge or the public prosecutor
according to the stage of the proceedings) to order provisional measures at the request of theapplicant.
The provisional measures must be appropriate and adequate for the intended purpose, namely
ensuring that during the main proceedings, the party seeking redress does not suffer serious and
irreparable harm.
The party having an interest may rely on existing law or on the law deriving from a decision
to be made in the action already brought or to be brought.
Article 20 of the IPC also provides for inspecti on of the industrial establishment or any other
premises to confirm or clarify the allegations made by the parties.IP/Q4/PRT/1
Page 13
26. Articles 50.1 and 50.8 require that judicial and administrative authorities have the
authority to order prompt and effective provis ional remedies to preserve relevant evidence in
regard to an alleged infringement.  Please identify the provisional measures available to
preserve relevant evidence in regard to an al leged infringement and cite the relevant legal
authority.
The customs authorities may, on their own initiative, seize the goods displaying evidence of
an offence under the IPC (Article 274) .  The seizure may subsequently be confirmed or required once
again by the competent judicial authority, on the initiative of the public prosecutor, or at the request of
the injured party.
Similarly, the CRRC (Article 201) provides for th e seizure of copies of usurped or counterfeit
works.
In cases of flagrante delicto,  it is the administrative authorities and the police, i.e. the criminal
investigation service, the public security forces, the Republican National Guard, the Customs
Department and the Directorate-General for Inspection (Economic Affairs) that have the authority to
carry out the seizure.
27. Articles 50.2 and 50.8 require Members to authorize judicial and administrative
authorities to adopt provisional measures inaudita altera parte .  With respect to each intellectual
property right identified in Article 1.2 of the TRIPS Agreement, please describe briefly thecircumstances in which the judicial and administrative authorities are empowered to adoptprovisional measures inaudita altera parte  and cite the relevant legal authority.
The IGAE (General Inspectorate of Economic Activities) must promote preventive and
repressive action against economic offences.
According to Decree-Law No. 269-A/95 of 19 Octobe r, the IGAE is a cen tral service of the
Ministry of the Economy whose purpose is to apply the laws, regulations, instructions, internal
decisions and other provisions regulating economic activities.
The functions of the IGAE (under Articles 3 and 6 of the same Decree-Law) include:
- Promotion of preventive and repressive action against economic and public health
offences;
- assistance to the judicial authorities;- investigation and examination of infringement cases over which it has legally granted
authority, including the power to dismiss a case;
- disclosure of the laws concerning different sectors of the economy placed under its
supervision on behalf of business associations, trade union organizations and other
economic operators.
It may exercise its activities:
- Through preventive measures against certain economic offences;- through repressive measures, to annul the unlawful acts and avoid the commission of
such acts in the future.IP/Q4/PRT/1
Page 14
Under the mentioned Decree-Law, officials from the Inspectorate may order the immediate
seizure of all infringing goods, inter alia  counterfeit goods, and goods that violate the rules protecting
intellectual property rights.  According to the PPC, seizures must be accepted and confirmed by the
competent judicial authority.
In the case of criminal offences involving the violation of intellectual property rights
(described in Article 1.2 of the TRIPS Agreement) identified in the course of regular inspection or
reported, the judicial authority (public prosecutor) receives an application for seizure of the goods,
objects, machines, etc. linked to the commission of the offence.
Under Articles 151 et seq. of the PPC, the judicial authority must subsequently confirm the
seizure and order an expert opinion.
28. Articles 50.2 and 50.8 require that judicial authorities and administrative bodies be
authorized to grant provisional remedies when a delay is likely to cause "irreparable harm" tothe right holder.  Please describe briefly what is required by the authorities identified in answersto questions 25, 26 and 27 to establish "irreparable harm" to the right holder.
For the adoption of provisional measures, an application must be submitted to the court in
conformity with the Law on Civil Procedure.  Thus, the authority to assess any irreparable harm to the
right holder, to establish, in each case, the necessary measures and to notify the parties concerned lies
with the judge.
When an application for seizure of the goods is lodged, this option will remain on the agenda
of the case.  Its implementation (or changes resulting therefrom throughout the proceedings) will be
ordered by the responsible entity, the judge or public prosecutor in a criminal case, according to the
stage of the procedure, and in the case of an infringement, the entity which decides on the conclusion
of the proceedings (which, in the field of intell ectual property, shall in no case be the IGAE).
Thus, it is these authorities, depending on the particular nature of the case under examination,
that decide whether it is possible to avoid irreparable harm or whether there is a risk of destruction of
evidence requiring action, and where this is the case , that assess the viability of the measures to be
taken and order them accordingly.
29. Articles 50.2 and 50.8 also require that judicial authorities and administrative bodies be
authorized to grant provisional remedies when there is a "demonstrable risk of evidence beingdestroyed".  Please describe briefly what factors are considered by the competent authorities indetermining when there is a "demonstrable risk of evidence being destroyed".
See the reply to question 28.
30. Articles 50.3 and 50.8 require that judicial and administrative authorities be authorized
to require an applicant to provide evidence to establish with a sufficient degree of certainty that
the applicant is the right holder and that infringement has occurred or is imminent.  Withrespect to each intellectual property right defined in Article 1.2 of the TRIPS Agreement, pleasedescribe the evidence required by right holders to establish ownership.
The right holder may establish ownership through a registration certificate (Article 6 of the
IPC) issued by the Industrial Property Institute.IP/Q4/PRT/1
Page 15
31. Articles 50.3 and 50.8 require that judicial and administrative authorities be authorized
to provide a security or equivalent assurance to protect the defendant.  With respect to eachintellectual property right identified in Article 1.2 of the TRIPS Agreement, please cite the legalauthority establishing a security or equivalent assurance.
Under Article 387 of the CPC, the court may order a provisional measure whenever there is a
serious probability that a right exists and a sufficiently well-founded possibility of that right being
violated.
The provisional measure may be replaced by an appropriate security at the request of the
defendant, provided the security offered is deemed by the applicant to be sufficient to avoid the
damage or repair it in full.
Where he so deems appropriate, the judge may also, without hearing the defendant, make the
granting of a provisional measure contingent upon the payment of an adequate security by the
applicant (Article 390 of the CPC).
32. Article 50.4 requires that parties be notified when provisional measures have been
adopted inaudita altera parte .  Please describe briefly the procedures followed by each authority
able to adopt such measures for notifying affected parties and state the time within which suchnotice must take place.
Provisional measures must be notified to the interested party in accordance with the general
terms of Article 166 of the CPC.
These procedures are emergency procedures and must be decided in accordance with
Article 382 No. 2 of the CPC.
.
See in addition the replies to questions 28 and 29.
33. Article 50.4 also requires that defendants be afforded a review process to determine
whether provisional measures should be modified, confirmed, or revoked.  Please describebriefly the procedures a defendant must follow to initiate review proceedings in each of theauthorities able to adopt such measures and identify the period within which such proceedingsmust be initiated.
There is always a possibility of appeal under the provisions of Article 676 of the CPC and in
accordance with the rules set forth in Articles 771 and 772 of the CPC concerning the grounds for
appeal and the time-limits to be respected.
34. Article 50.5 requires that competent authorities be authorized to require applicants to
supply other information necessary for the identification of goods concerned by the authoritythat will execute  the provisional measures.  Please describe briefly what other information maybe required by the authorities and cite the legal authority establishing the basis for thissupplemental information.
Although Article 384 of the IPC provides for the ordering of a provisional measure on the
basis of summary evidence of the threatened right submitted by the applicant, under Article 519 of the
IPC, the court may require the applicant to supply such additional information as it deems relevant.IP/Q4/PRT/1
Page 16
35. Articles 50.6 and 50.8 provide that if proceedings leading to a decision on the merits are
not initiated within a reasonable time, provisional remedies granted by competent authoritiesshall be revoked or otherwise cease to have effect, at the request of the defendant.  Pleaseidentify the relevant provisions in the law of Po rtugal authorizing the revocation or cessation of
provisional measures if review proceedings are not initiated within a reasonable time and specifywhat constitutes a "reasonable time period" to initiate proceedings.
Provisional measures are always made dependent on a substantial claim.  Article 389 No. 1(c)
of the CPC specifies a period of 30 days for the commencement of the main proceedings from the
time that the applicant is notified of the provisional measures ordered by the court, failing which theprovisional measures cease to have effect.
36. Articles 50.7 and 50.8 provide that judicial and administrative authorities shall have the
authority to order the applicant to provide the defendant appropriate compensation for anyinjury caused by the adoption of provisional measures when the said measures are revoked, havelapsed, or when it has been determined that there has been no infringement or threat ofinfringement.  Please describe how the competent authorities determine "appropriatecompensation".
If the measure is considered to have been unjustified (or if it has lapsed), the applicant is
responsible for the damage caused to the person against whom it was aimed if he did not act with due
care and if he is prevented from applying for another measure relating to the same action (Articles 389
and 390 of the CPC).  The judge must decide on the amount of the compensation taking account the
value of the damage caused and the amount of profits lost in order to ensure that the injured partyrecovers his economic and legal status prior to the violation (Article 564 of the CC).  If restoration of
the status quo ante  is not possible, an equivalent reparation will be required in the form of a pecuniary
contribution corresponding to the amount of the damage (Article 566 of the CC).
Special requirements related to border measures
37. Article 51 of the TRIPS Agreement requires that countries adopt procedures that enable
right holders to request suspension of the im portation of counterfeit trademarked goods and
pirated copyrighted works.  Please identify the competent authority in Portugal authorized toaccept applications for a request to suspend release of suspected infringing goods and cite therelevant law or regulation governing such authority.
Requests to suspend the importation of suspected counterfeit or pirated goods – application
for action by the customs authorities – must be addressed to the Directorate-General of the Customs
and may be submitted to any customs offices on the national territory or directly to the Customs
Regulation Services Directorate ( Direcção de Serviços de Regulação Aduaneira ), Rua da Alfândega,
No. 2, 1194 Lisboa Codex.
This procedure is consistent with Council Regulation (EC) No. 3295/94 of 22 December,
which establishes measures designed to prohibit the release for free circulation, export, re-export, or
placing under a suspensive procedure of counterfeit goods and pirated goods.
38. Please describe the procedures a right holder must follow to obtain border protection by
the competent authorities, e.g., if there is a formal application that must be submitted to thecompetent authority, judicial or administrative, and the information required in the request forsuspension and cite the law or regulations providing such procedures.IP/Q4/PRT/1
Page 17
The right holder is the person who has standing to submit an application for action by the
customs authorities.  The application must be made in writing, in triplicate, and addressed to the
entities already mentioned in the previous reply.
The legal basis for this procedure is provided in Article 3 of Council Regulation
(EC) No. 3295/94 of 22 December.
39. Please explain whether procedures, permissible under Article 51 of the
TRIPS Agreement, are available to stop the export of goods suspected of infringing copyrightsand/or trademarks.
As already mentioned in the previous replies, the right holder must submit an application for
action by the customs authorities.
40. Article 52 of the TRIPS Agreement requires that right holders wishing to stop
importation of counterfeit trademarked goods or pirated copyrighted works present evidence to
the competent authorities that there is prim a facie infringement of their trademark or
copyright.  Please explain what evidence will co nstitute prima facie infringement in Portugal.
The application for action by the customs auth orities must be submitted together with the
document proving that the applicant is the holder of a protected right.
As regards rights that have been registered or, where appropriate, for which an application for
registration has been filed (trademark or registered industrial design rights), the application for action
must be supplied together with the documentary evidence of registration or application for registration
with the competent body.
In the case of prima facie infringement, the similarities between the trademarks, symbols,
logos, etc. of suspected counterfeit goods and of registered goods of the same type are taken into
consideration.
The representative of the right holder in Portugal or an expert appointed by the right holder
receives notification from the customs services inviting him to proceed to the customs office where
clearance has been suspended to confirm that the goods are counterfeit or pirated. This involves
obtaining an expert opinion.
41. Article 52 also requires that the right holder provide a "sufficiently detailed description
of the goods" to be stopped.  Please explain what is required of the right holder in Portugal for a
description to be "sufficiently detailed".
The description must indicate that the goods are counterfeit or pirated.  It must include the
trade description or provide a sufficiently precise description to enable the customs authorities torecognize their commercial designation.
42. Article 52 requires that the competent auth orities notify the right holder that his
application is accepted within a reasonable time.  Please explain within what period of time the
competent authority responds to a request for suspension of release of goods and, if the
application is accepted, the length of time during which enforcement action will be taken.
Applications for action by the customs authorities must be submitted to the customs offices
located on the national territory or directly to th e central services (DGA), where they are officially
examined and either accepted or rejected.IP/Q4/PRT/1
Page 18
Upon receiving an application for action by the customs authorities, the administrative
authorities must inform the applicant, without dela y, whether they accept or reject the application.
This information must be provided in writing and as rapidly as possible.
Applications for action are valid for six months, renewable at the request of the right holder.
43. Article 53.1 requires that the competent authorit ies have the authority to secure from an
applicant a security or equivalent assurance suff icient to protect a defendant and to prevent
abuse.  Please verify that the competent auth orities identified above are empowered to require
security or equivalent assurance and provide cita tions to the provisions of law or regulation that
grant them that authority.
The security or assurance is only required in the case of actual action by the customs
authorities.
44. Article 53.2 provides that the owner, importer, or consignee of goods involving
industrial designs, patents, layout-designs or undisclosed information that have been suspended
by customs authorities should be able, in certa in circumstances, to have such goods released on
payment of security sufficient to protect the right holder from infringement.  Please identify
what forms of intellectual property, if any, are subject to provisions of Article 53.2 and cite to
the relevant provisions of law or regulations.
In the case of goods suspected of infringing design rights, the owner, the importer or the
consignee of the goods may have the goods in question released or their detention revoked againstprovision of a security sufficient to protect the interests of the holder of the right.
This question is covered by Article 7, paragraph 2 of Council Regulation (EC) No. 3295/94 of
22 December.
45. Article 54 requires that the importer and th e applicant be notified promptly of the
suspension or release of goods.  Please specify the period within which the competent authority
is required to issue a notice that the release of goods has been suspended.
Regulation (EC) No. 3295/94 stipulates that the customs authority, upon receiving an
application, must inform the applicant without delay whether it allows the application or not.  This
information must be supplied in writing, as rapidly as possible.
46. Article 55 makes it clear that the right ho lder applying for suspension of infringing
goods must initiate a proceeding on the merits in an appropriate forum within a reasonable
period of time or the goods will be released.  Plea se identify the fora in which an applicant/party
may initiate proceedings on the merits that will allow customs authorities to hold the goods
beyond ten working days.
Decisions on the merits of the case fall under the jurisdiction of the ordinary courts.
47. Article 55 provides that a review is to take place within a reasonable time at the request
of the defending party to determine if the susp ension measures should be modified, revoked or
confirmed pending the outcome of the proceeding on  the merits.  Please identify the forum that
is authorized to conduct such a review and describe the procedure and cite the applicable law or
regulations.IP/Q4/PRT/1
Page 19
Portuguese law (Article 274 No. 3 of the IPC) al lows the review of measures leading to the
suspension of the entry and free circulation of goods.  As a general rule, new documents and new
decisions are allowed in such cases, including the confirmation (or non-confirmation) of the
suspension measure.  The authority to apply this decision lies with the judicial court.
48.  Article 56 requires that the authorities be able to require the applicant to compensate
the defending party for any injury caused if  the detention of goods was unfounded.  Please
identify the authorities that can order the appl icant to pay the importer, consignee or owner
compensation for injury caused by wrongful detention or through the detention of goods
released pursuant to Article 55 and cite to the applicable law or regulations.
Under Article 66 et seq . of the CPC, the court is the only competent authority in this respect.
49.  Article 57 requires that the competent author ities be able to authorize the right holder
to inspect the detained goods in order to substantiate the claims.  Please explain how right
holders are provided an opportunity to insp ect suspect goods that have been detained by
customs authorities.
According to Article 6, No. 1 of Regulation (E C) No. 3295/94, the customs office affords the
applicant and the persons involved in any of the operations referred to in Article 1(1)(a) theopportunity to inspect the goods whose release has been suspended or which have been detained.
When examining the goods the customs office may take samples in order to expedite the
procedure.
50. Article 57 also requires that, where the decision  on the merits favours the right holder,
the competent authorities also may be given au thority to give the right holder information
regarding the importer, consignee or consignor.   If competent authorities in Portugal can
provide information regarding the importer, cons ignee or consignor to the right holder, please
explain how information regarding names and addresses of consignors, importers andconsignees and quantities of goods are provided to the applicant after a positive decision of
infringement is made, e.g., authorities automatica lly providing information or by submission of
a written request from the right holder, etc.  Plea se cite to the law or regulations providing such
authority.
The customs office or the service that processed the application informs the holder of the
right, upon request, of the names and addresses of the consignor, of the importer or exporter and of
the manufacturer of the goods found to be counterfeit or pirated and of the quantity of the goods in
question.  This information must be in accordance with provisions relating to commercial and
industrial secrecy and professional and administrative confidentiality (Article 8(3) of Regulation (EC)
No. 3295/94).
51. Article 58 specifies procedures to be followed where the competent authorities can act
ex officio.  Please explain whether the competent authorities in Portugal are empowered to act
ex officio and, if so, please identify the intell ectual property areas subject to ex officio action.
In the case of industrial property offences, the authorities may act "ex officio" (Article 274 of
the IPC and Article 4 of Regulation (EC) No. 3295/94).
52. Article 59 identifies the remedies that are to be available, including destruction or
disposal of infringing goods outside the stream of commerce.  Please explain what the law in
Portugal permits regarding the disposition of in fringing goods, i.e., does the law allow for
destruction, disposal or both.  Please cite to  the law or regulations providing such authority.IP/Q4/PRT/1
Page 20
The IPC provides for the destruction of infringing goods in accordance with the following
legal provisions:  Articles 274 and 258 of the IP C and Articles 46-51 of Decree-Law No. 28/84 of
20 January.
The CRRC (Article 201 No. 2) provides for a similar regime.  The competent authority is the
judicial authority (Article 16 of the PPC).
53. Please identify:
(a) The competent authority that decides the disposition of the goods, i.e., whether
the goods will be destroyed or disposed of outside the stream of commerce;  and
(b) the competent authority that carries ou t the destruction or disposal of the goods.
The goods remain at the disposal of the court, which decides on their fate.
54.  Article 60 permits Members to exclude from the provisions for border enforcement
small quantities of goods of a non-commercial nature carried by passengers or sent in small
consignments.  Please describe what constitutes a de minimis  import that is excluded from the
border measures under the law of Portugal.
In the specific framework of passenger transi t, the following goods are excluded from the
border regulations:  goods that form part of the personal baggage of travellers (as defined in
Article 190(h) of Commission Re gulation (EEC) No. 2454/93), non-commercial goods (as defined by
Article 1(6) of the mentioned Regulation) and goods subject to the limitations (in value and quantity)imposed on the granting of exemptions from duty (the value limit is ECU175).
Criminal procedures
55. Article 61 of the TRIPS Agreement requires that Members have criminal procedures
and penalties, including imprisonment and/or mone tary fines sufficient to act as a deterrent, at
least for cases of wilful trademark counterfeiti ng and copyright infringement on a commercial
scale.  Please describe the provisions in the la w of Portugal that fulfill that obligation and
provide legal citations.
The crimes of counterfeiting, imitation or illegal use are punishable under the IPC by up to
two years' imprisonment or a fine of up to 240 daily rates.
In the area of copyright and related rights, offences comprise usurpation (Article 195 of the
CRRC) and counterfeiting (Article 196 of the CRRC), which are punishable by up to three years'
imprisonment and a fine of 150 to 250 daily rates.  According to the seriousness of the offence, the
penalties may be doubled in the case of a re-offender, if the act constituting the offence is not a crime
to which a more serious penalty is applicable.  These offences are also punishable on the grounds ofnegligence.
56. Article 61 also requires that remedies in appr opriate cases include the seizure, forfeiture
and destruction of infringing goods and any materials and implements the predominant use of
which has been the commission of the offence.  Please explain the provisions in the law of
Portugal that provide for such remedies, describe the circumstances in which those remedies
would be imposed and provide legal citations.IP/Q4/PRT/1
Page 21
Article 201 of the CRRC provides for the seizure and loss of copies of usurped or counterfeit
works suspected of having been used or intended for the accomplishment of the act constituting the
offence.
Also subject to seizure by the customs authorities upon import or export are all products or
merchandise directly or indirectly bearing false indications or appellations of origin or trademarks ornames that are illegally used or applied or display evidence of an offence stipulated in the IPC.  This
seizure is carried out at the initiative of the customs authorities (Article 274).
Article 13 of Decree-Law No. 252/94 of 20 October also provides for the seizure of unlawful
copies of computer programmes.
Use of counterfeit or usurped works and the sale or circulation of products or articles bearing
a counterfeit trademark are also punishable under Po rtuguese law (Article 199 of the CRRC and
Article 264 No. 2 of the IPC).
Portuguese law also provides for repressive seizure in the area of counterfeiting and the
illegal use of trademarks in accordance with the regimes set forth in Articles 406 and 407 of the CPC.
As regards the destruction of goods and other materials and implements predominantly used
to commit the offence, the legal provisions of Articles 258 and 274 of the IPC apply in conjunction
with Articles 46 and 51 of Decree No. 28/84 of 20 January.
57. Article 61 also indicates that Members may provide for criminal procedures and
penalties in cases of wilful infringement of oth er forms of intellectual property.  Please describe
any provisions in the law of Portugal that provide for such procedures and remedies and
provide legal citations.
See the reply to question 55.
As regards the protection of industrial property rights, the following are considered as
criminal offences:
- Unfair competition (Article 260 of the IPC), punishable by up to three years'
imprisonment or a fine of up to 360 daily rates;
- infringement of the exclusive right to an invention (Article 261 of the IPC),
punishable by up to three years' imprisonment or a fine of up to 360 daily rates;
- patent obtained in bad faith (Article 262 of the IPC), punishable by up to one year's
imprisonment or a fine of up to 120 daily rates;
- infringement of the exclusive rights conferred by models and designs (Article 263 of
the IPC), punishable by up to three years' imprisonment or a fine of up to 360 daily
rates;
- illegal reference to or use of  awards (Article 267 of the IPC), punishable by up to one
year's imprisonment or a fine of up to 120 daily rates;
- infringement of rights conferred by names and emblems (Article 268 of the IPC),
punishable by up to one year's imprisonment or a fine of up to 120 daily rates.IP/Q4/PRT/1
Page 22
Under the CRRC, the use of the infringed or us urped work (Article 199) and the infringement
of moral rights (Article 198) are also punishable.
In addition to the offences already mentioned, Portuguese law also condemns offences
relating to data processing in Law 9/91 of 17 August.
58. Article 61 requires that criminal penalties be sufficient to provide a deterrent at least for
wilful trademark counterfeiting and copyright piracy.  Please explain how the penalties providedunder the laws of Portugal comply with that obligation.
The above information leaves no doubt that Portuguese law is consistent with Article 61 of
the TRIPS Agreement.
[Follow up questions from the United States]
1. Please provide statistical information related  to civil copyright, trademark, geographical
indication, industrial design, patent, inte grated circuit layout-design and trade secret
enforcement for each of the years 1996 and 1997, including the number of  cases filed;
injunctions issued;  infringing products seized; infringing equipment seized; cases resolved
(including settlement);  and the amount of damages awarded.
Statistical data for 1996
Number of cases filed with the judicial courts:- two concerning copyright violations;
- 205 concerning the protection of industrial property rights.
154 of these cases were concluded.The cases lasted an average of 12 months.
2. Please provide statistical information relat ed to criminal enforcement in the area of
copyright piracy and trademark infringement fo r each of the years 1996 and 1997, including the
number of raids, prosecutions, convictions and the amount of fines and/or jail terms (including
whether the fines were paid and whether the jail term was actu ally served or was suspended)
and any other information establishing that your criminal system operates effectively to deter
copyright piracy and trademark counterfeiting.
Statistical data for 1996
1. Copyright infringement
(a) Inquiry proceedings: 61(b) Rulings: 37(c) Persons appearing before the court: 41IP/Q4/PRT/1
Page 23
(d) Persons convicted: 22
Fines:  8
Imprisonment replaced by a fine: 13
Suspended imprisonment:   1
(e) Total damages: Esc 2,431,000
2. Trademark counterfeiting
(a) Inquiry proceedings: 211(b) Rulings:   29(c) Persons appearing before the court:   31(d) Persons convicted:   17
Fines:   13
Imprisonment replaced by a fine:   3
Suspended imprisonment:     1
(e) Total damages: Esc 1,394,000The average length of the proceedings was 15 months.
__________