A proteção dos desenhos ou modelos pela propriedade industrial e pelo direito de autor | 2014

Author(s) Bruno Miguel da Silva Leite
Advisor(s) Luís Couto Gonçalves
Year 2014

Synopsis We live in an age that increasingly values appearance and aesthetics, a reality that is of particular importance in commerce, in which the consumer often gives more relevance to the outer aspect of a product, rather than their intrinsic quality. The appearance of products, while a result of human creativity, is an intellectual creation (of ornamental nature). Therefore, there are two types of legal applicable protection, the right of industrial property through the scheme of designs or models, and copyright, which protects the works of art. Since there are two different regimes able to regulate the same reality, it is necessary to understand whether both can be applied simultaneously to the same setting, a circumstance that due to the assignment of copyright to a more extensive protection, might influence the economy and business competition, making this issue a controversial one. Thus, the object of our study will be trying to understand if it is possible that the appearance of a product, its design or model can be simultaneously protected by these two branches of law, and if the answer is yes, we will try to realize in which conditions this can happen. We shall, therefore, begin by examining some general aspects of the two applicable legal regimes. Next, we will study the given response to the problem in some European jurisdictions. Finally, we will study the Portuguese legal system, in which we will seek to determine whether it is possible to cumulate the two protection regimes in a single setting, and, if so, what requirements the establishment has to fill to obtain a dual protection.

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