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THE INDUSTRIAL PROPERTY CODE
THE RIGHT TO REGISTER A TRADEMARK
(Right to registration)
The right to register a trademark shall lie with anyone who has a legitimate interest in so doing, and specifically:
a) Businesses, to identify the products which they produce;
b) Merchants, to identify the products in which they trade;
c) Farmers and producers, to identify their products of their activities;
d) Artists, to identify the products of their art, occupation or profession;
e) Service providers, to identify their respective activities.
(Free or unregistered trademark)
1. Anyone using a free or unregistered trademark for a period not exceeding 6 months shall, for that period, enjoy a priority right to have it registered and may lodge a complaint against an application filed by somebody else during the said period.
2. The veracity of the documents submitted to prove that priority right shall be freely appreciated, except if they are legally authenticated documents.
(Right to register collective marks)
1. The right to register collective marks shall lie with:
a) Bodies corporate which have been legally allocated or recognized as possessing a certification mark and which can apply it to products or services having certain specific qualities;
b) Bodies corporate which protect, control or certify economic activities, for identifying the products of those activities or which originate from certain regions, in accordance with their purposes and the terms of their respective articles of association or the statutes.
2. The bodies corporate referred to in sub-paragraph 1(b) above shall have provisions inserted in their respective articles of association or in their statutes, designating them as being entitled to use the mark, indicating the conditions in which it should be used and the rights and obligations of the interested parties in the case of usurpation or infringement.
3. The management of the entity that owns the collective mark shall, within 1 month of any amendment to the articles of association or statutes that govern the status of the trademark, inform the DES of the change.
THE TRADEMARK REGISTRATION PROCEDURE
(Unity of application and registration of the trademark)
No more than one registration may be filed in the same application and each trademark to be used on the same products or services can be registered only once.
(Registration for products and services)
Trademarks may be registered for products or services, it being up to the DES to indicate the respective classes in agreement with the classification provided by law.
(Forms of application)
The trademark registration application shall be filed in writing in the official language of the Territory, indicating the name or commercial style of the applicant, his/its nationality and domicile or location, and identifying the trademark whose registration is required, accompanied by the following items, in triplicate:
a) The products or services covered by the trademark, grouped in accordance with the classes of the classification of products and services and designated in precise terms, preferably the terms appearing in the aforementioned alphabetical classification;
b) An indication as to whether the application concerns a product, service, association or certification mark;
c) An indication as to whether the application concerns a three-dimensional or sound trademark
and, in the latter case, a graphic representation in musical notation of the sounds that enter into the composition of the trademark;
d) An example of the trademark, appended in the area reserved for that purpose on the applicant's own printed paper;
e) Two photolithographs for the typographic reproduction of the trademark, of maximum dimensions 6 cm x 6 cm and minimum dimensions of 1.5 cm x 1.5 cm;
f) Three copies of the trademark with the written indication of the colours, in case these are demanded as constituent element;
g) Mention of the priority right, if applicable, according to article 17(3).
(Additional elements of the application)
1. Where appropriate, the registration application shall be accompanied by the following elements:
a) Documents proving the priority right claim;
b) Documents proving the use of a free or unregistered trademark, where the applicant wants
to claim priority based on the use of a free or unregistered trademark;
c) Authorization of the proprietor of a foreign registered trademark for whom the applicant is acting as agent or representative in the Territory;
d) Authorization of any person whose name, corporate style, name or emblem of establishment, picture, painting or any other expressions or representations appear in the trademark, or, if such a person is already deceased, of their heirs or relatives to the fourth degree;
e) Authorization to include in the trademark any flags, coats-of-arms, escutcheons, symbols, arms or other emblems of the Territory, municipal districts or other public or private entities, within the Territory or outside, as well as badges, stamps and official hallmarks, indicating any inspection and warranty, private emblems or denomination of the Red Cross or of any other bodies of a similar nature;
f) Authorization to include in the trademark monuments in the Territory, or the respective designation, representation or imitation thereof;
g) Authorization to include in the trademark signs of high symbolic value, namely religious symbols;
h) Decorations or other distinctions referred to or reproduced in the trademark;
i) Certificate from the competent registrar proving the right to include in the trademark the name or any reference to a specific rural or urban property and the proprietor's authorization, to that effect, if the applicant is not the proprietor;
j) Authorization from the owner of previously registered marks or other industrial property rights with which the subject matter of the trademark being applied for could be confused, as well as from the holders of exclusive licences, if such exist, and their contracts do not waive their respective consent;
k) [Translator's note: The Portuguese alphabet has no letter K.]
l) Legal, statutory or regulatory provisions governing the use of a collective mark.
2. When the trademark contains writing in little-known characters, the applicant shall submit a transliteration and translation of that writing.
(Priority right)
1. Should the list of products or services for which registration is being applied in Macao contain products or services different from those comprising the registration application underlying the priority, the applicant shall be notified in order that, within the inalterable deadline of 1 month, he may replace the list of products or services.
2. Failure to replace the list referred to in the previous paragraph shall result in loss of priority and, for the purpose of local registration, the date of the submission of the application in Macao and list contained therein shall be considered for the purpose of the application.
(Examination as to form)
1. Once the DES has received the application, it shall, within 1 month, proceed to its formal examination to ensure that it contains all the elements required pursuant to articles 206 and 207 and shall classify the products and services.
2. If the application lacks any of the required elements, or should they not be in order, this shall be rectified by the applicant within 2 months of its being so notified by the DES or, if not so notified, within a maximum of 3 months from the filing of the application, either of which deadline may be extended by 1 more month, in response to a founded request.
3. If products or services classified in different classes are included in the same class, the notification referred to in paragraph 2 shall inform the applicant that he must limit the application to the class or classes indicated or, failing that, pay an additional fee.
4. The date that establishes the priority of filing, for the purpose of article 15, is that on which all the elements referred to in article 206 have been submitted and, should the applicant so request, the DES shall issue the appropriate submission certificate.
5. Failure to send the notification referred to in paragraph 2, as well its non-reception, shall not, for the effects of granting of the trademark, release the applicant from rectifying the defects in the application within the legal deadline.
6. If, by the end of the deadline set pursuant to paragraph 2, it is found that the defects or irregularities in the application have not been rectified, the applications shall be refused and a notice to that effect will be published in the Official Bulletin.
(Publication of the registration application)
Once the application has been show to be complete, or after it has been duly rectified pursuant to the previous article, the DES shall have the appropriate notice published in the Official Bulletin, indicating the elements necessary for the complete identification of the applicant and of the subject matter including, as appropriate:
a) The typographic reproduction of the trademark and indication of the classes and products or services that it is to cover, with express reference to the colours if these are part of the claim;
b) The graphic representation in musical notation of any sounds entering into the composition of the trademark.
(Complaint and response)
1. Complaints shall be filed within 2 months of the date of the publication of the application in the Official Bulletin.
2. The applicant may answer complaints and other procedural submissions in the response that is to be filed within 1 month of the respective notification.
3. At the request of the interested party, submitted within the deadlines set in the preceding paragraphs, the submission of additional arguments may be authorized whenever this is shown to be necessary for the better clarification of the proceedings and when the complexity of the subject matter so justifies.
4. The additional arguments referred to in the previous paragraph shall, when authorized, be submitted within the deadline set by the DES or, where no such deadline is set, within a maximum of 1 month from the end of the periods referred to paragraphs 1 and 2.
5. At the request of the interested party and with the agreement of the opposing part, the consideration of the case may be suspended for a period of no more than 6 months.
6. Unofficially the DES, on its own initiative or at the request of the interested party, may suspend consideration of the case for as long as it takes to investigate any pre-judicial proceedings that could affect the decision on the matter.
7. There shall lie no independent recourse against the ruling of non-receipt of complaint or response but the claimant may appeal the ruling that grants the right to the trademark, pursuant to the terms of Section IV of the present Statute.
(Examination and study of the proceedings)
1. Once the period for the presentation of complaints has expired and, if applicable, the discussion is over, the DES shall proceed to the examination and study the proceedings.
2. The examination shall consists in the appreciation of the allegations of the parties and, primarily and obligatorily, in the examination of the requested trademark and its comparison with the trademark or marks registered for the same product or service, or for identical or similar products or services, after which the report is prepared and submitted for a ruling, which can be to grant or refuse.
3. The examination of the trademark should always, with respect to the elements of which it is composed, be examined for any possible confusion of the Portuguese, Chinese, English or other characters and sounds, separately or in combination.
(Decision)
1. The registration shall be granted if no grounds are discovered to refuse and if the complaints, if any, are considered unfounded.
2. The ruling granting or refusing the registration shall be handed down in a maximum of 6 months from the date of the publication in the Official Bulletin of the application notice.
(Grounds for refusal of registration)
1. Registration of the trademark shall be refused if:
a) Any of the general grounds for refusing to grant industrial property rights is found pursuant to article 9(1);
b) An essential part of the trademark constitutes a reproduction, imitation or translation of another that is well-known in Macao, if applied to identical or similar products or services and with which it can be confused, or if those products could establish a connection with the proprietor of the well-known trademark;
c) The trademark, although meant for products or services with no connection, constitutes a reproduction, imitation or translation of a previous trademark that enjoys prestige in Macao, and whenever the use of the subsequent trademark tries to derive improper advantage or prestige from the distinctive character the trademark or could harm such character or prestige.
2. The registration application shall also be refused whenever the trademark or any of its elements contains:
a) Signs that are likely to mislead the public, namely with respect to the nature, qualities, usefulness or geographical origin of the product or service for which the trademark is to be used;
b) Reproduction or imitation, in all or part, of a trademark previously registered by someone else, for identical or similar products or services, that could mislead or confuse the consumer, or that incurs a risk of association with the registered trademark;
c) Fancy medals or designs liable to be confused with official decorations or with the medals and awards conferred at official meetings and exhibitions;
d) Arms or heraldic insignia, medals, decorations, epithets, titles and honorary distinctions to which the applicant is not entitled, if disrespect or discredit is brought upon a similar sign;
e) The style, name or emblem of an establishment, or any characteristic part thereof that does not belong to the applicant or that the applicant is not authorized to use, if it is liable to mislead or confuse the consumer;
f) Signs that constitute a breach of copyrights or industrial property rights.
3. The fact that the trademark comprises exclusively signs or indications referred to article 199(1(b) and (c)) shall not constitute grounds for refusal if it has acquired a distinctive character.
4. A party interested in the refusal of the registration of the trademark referred to in subparagraph 1(b) may intervene in the respective proceedings only if it can prove that it has already applied for the respective registration in Macao or if it does so simultaneously with the refusal request.
5. A party interested in the refusal of the registration of the trademark referred to subparagraph 1(c) may intervene in the respective process only if it already proves that it has already applied for the respective registration in Macao of the products or services that conferred prestige upon it, or it does so simultaneously with the complaint.
(Reproduction or imitation of the trademark)
1. The registered trademark shall be deemed to have been reproduced or imitated in whole or part by some other party when, cumulatively:
a) The registered trademark has priority;
b) They are both meant to designate identical or similar products or services;
c) They are so graphically, nominatively, figuratively or phonetically similar to another trademark as to easily mislead or confuse the consumer or as to involve a risk of being associated with a previously registered trademark, so that the consumer cannot distinguish between them save by dint of attentive examination or comparison.
2. The use of a certain fancy denomination forming part of some other previously registered trademark, or only of the external appearance of the package or wrappings of the products of that brand, and having the respective layout of colours and wording, medals and awards so that illiterate people are not able to distinguish between these products and others which bear them and do legitimately possess the marks used, shall be considered to be the reproduction or partial imitation of a trademark.
(Partial refusal)
When the grounds for refusing the registration of a trademark concern just some of the products or services for which the application was filed, the refusal of the registration shall just be limited to those products or services.
EFFECTS OF REGISTRATION OF TRADEMARK
(Legal presumption of registration)
The registration of a trademark implies a mere legal presumption of innovation or of distinction from another previously registered.
(Duration and renewal of registration)
1. The duration of registration shall be 7 years counted from the date of the respective granting, indefinitely renewable for like periods.
2. The renewal application shall be submitted within the last 6 months of the current validity period, accompanied by the original of the registration certificate.
(Rights conferred by the registration)
1. The registration of the trademark confers upon the holder the right to prevent a third party, in his economic activity and without the consent of the holder, from using, any sign identical to or likely to be confused with that trademark for products or services identical or similar to those for which that trademark was registered, or which, consequent upon the identity or similarity of the signs or the similarity of the products or services, creates, in the mind of the consumer, a risk of confusion that includes the risk of an association between the sign and the trademark.
2. The registration of the trademark shall cover the use thereof in documents, printed matter, computer pages, advertising and documents relative to the entrepreneurial activity of the titleholder.
(Limits on the rights conferred by registration)
The right conferred by the registration of the trademark shall not, provided that use is made according to the standards and honest practice applicable in industrial and commercial matters, permit the holder to prevent third parties, in their economic activity, from using:
a) their own name and address;
b) Indications relative to the nature, quality, amount, purpose, value, geographical origin or time of production of the product or service or to other characteristics of the products or services;
c) The registered trademark, whenever that be necessary to indicate the origin of a product or service, namely in respect of accessories or spare parts.
(Preclusion of action by virtue of tolerance)
1. A holder of a registered trademark who, being aware of the fact, has tolerated the use of a subsequently registered trademark for a period of 3 consecutive years following its registration shall lose the right based on his previously registered trademark, to request the annulment of the registration of the subsequent trademark or to oppose its use in relation to the products or services for which the subsequent trademark has been used, except if the registration of the subsequent trademark was made in bad faith.
2. The 3-year period foreseen in the previous paragraph shall be counted and lapse from the moment in which the holder becomes aware of the fact.
3. The holder of the subsequently registered trademark shall have no right to oppose the previous right, even if that right can no longer be invoked against the subsequent trademark.
(Relationship with social styles and company names)
1. The registration of a trademark shall provide grounds for the annulment of company names liable to be confused therewith, provided that the requests for the authorization or alteration thereof be subsequent to the respective registration requests.
2. Acts of annulment of the acts resulting from the previous paragraph, shall be acceptable only within a period of 5 years from the date of publication in the Official Bulletin of the constitution or alteration of the style of the body corporate, except where proposed by the Department of Justice.
USE OF THE TRADEMARK
(Optional use of the trademark)
Notwithstanding the provision governing for feiture of the right to the trademark, the use
thereof shall be optional, except where the products or services on which the registered trademark is used are declared obligatory by some legal provision.
(Inalterability of the trademark)
1. The trademark shall remain unalterable, any change in its component parts being subject to a new registration.
2. By way of exception to the provision of the previous paragraph, simple modifications that in no way detract from the identity of the trademark and affect only its proportions, the material from which it was minted, recorded or reproduced and also the colour shall be permitted unless such features were expressly demanded as one of the characteristics of the trademark.
3. Similarly, the inclusion or removal of the express indication of the product or service that the trademark is meant to adorn, or any alteration to the holder of the trademark, whether its name or social style or its registered office or place of establishment, shall not detract from the identity of the trademark.
(Indication of registration)
During the term of the registration the holder of the trademark registration shall be entitled to add the acronym «M.R.», «R» or simply (r), to designate « Marca Registada », being "Registered Mark" in Portuguese, or the equivalent expression in Chinese (...), or else the English expressions «Registered Trademark» or «TM».
(Use of certification trademark)
When affixed to the product in any way, the certification mark shall be complemented, if necessary, by the indication that it does not apply to all phases of the manufacturing process.
(Assignment of the trademark)
1. The assignment of the establishment shall presuppose the assignment of the registration application or ownership of the trademark, unless otherwise stipulated.
2. The registration application or ownership of the registered trademark are assignable, independently of the establishment, provided that this cannot mislead the public as to the origin of the product or the service or the characteristics essential for its appreciation.
3. When the assignment of the products or services is but partial, a copy shall be requested of the documents serving as the basis for the independent registration, including the right to ownership.
4. In the case of partial assignment, the new applications shall conserve the priorities to which they are entitled.
5. If the trademark includes the individual name or corporate style of the holder of, or applicant for, the respective registration, or of someone whom the holder or applicant represents, an express clause shall be necessary for its assignment.
(Limitations on assignment)
Marks registered in favour of bodies protecting or controlling economic activities shall not be assignable, except where specially provided for by Law, Statutes or internal regulations.
TERMINATION OF TRADEMARK REGISTRATION
(Nullity of the trademark registration)
The registration shall be subject to the provisions of article 47, but the respective nullity shall not be declared, although the trademark be constituted by signs as stipulated in article 199(1(b) and (c)), if the trademark has acquired a distinctive character.
(Annulment of the trademark registration)
1. Mark registrations may be nullified in the cases provided for in article 48 and, moreover, when the title was granted:
a) Without the presentation of substantiating documents and the required authorizations;
b) In breach of the provisions of article 214(1(b) and (c)) and (2).
2. Any party interested in the annulment of a trademark in order to protect well-known trademarks may intervene in the proceedings only on proving that the respective registration has already been requested in Macao or by simultaneously filing the annulment request.
3. Any party interested in the annulment of a trademark in order to protect prestige marks may intervene in the process only by proving that the respective registration has already been requested in Macao for the products or services that conferred such prestige or by simultaneously filing the annulment request.
4. The trademark registration cannot be annulled if the previous trademark with which it is held to be in opposition does not satisfy the condition of serious use.
5. Annulment of a trademark based on a breach of the provisions of article 214(1(b) and (c)) may be applied for only up to 5 years from the date of registration.
(Forfeiture of trademark registration)
1. The trademark registration shall be forfeit:
a) In the cases provided for in article 51(1);
b) For lack of serious use for 3 consecutive years, unless for justifiable reason;
c) If it suffers alteration that detracts from its identity.
2. The registration of the trademark shall expire also if, after the date on which it was effected:
a) The trademark has changed in the usual designation in the trade of the product or service for which it was registered, as a consequence of the activity or inactivity of the holder;
b) The trademark, with time, could mislead the public, namely with respect to the nature, quality and geographical origin of those products or services, if it continues to be used by the holder of the trademark or a third party with the holder's consent, for the products or services for which it was registered;
c) The trademark was used in Macao in cases in which it was registered for export only.
3. The registration of a collective mark shall be declared forfeit:
a) If the body corporate in favour of which the trademark was registered ceases to exist except in cases of merger or split;
b) If the body corporate in favour of which the trademark was registered consents to its being used in way contrary to its general purpose or to the provisions of its articles of association.
4. When reasons exist for the forfeiture of registration of a trademark merely with respect to some of the products or services for which it was taken out, the forfeiture shall affect only such products or services.
5. Notwithstanding the provisions of article 51(2) and (4), the grounds for forfeiture specified in the present article may be cited by any interested party, in court or out.
(Serious use of trademarks)
1. Serious use of trademarks is considered:
a) The use, under the terms of the present Statute, by the holder of the registration or his properly registered licensee of the trademark such as it was registered or not differing therefrom other than in details that do not alter its distinctive character.
b) The use of the trademark, as defined in the previous sub-paragraph, for products or services for export only;
c) The use of the trademark by a third party, provided that this is under the supervision of the title-holder and for the purpose of maintaining the registration.
2. The serious use of an association mark shall be gauged according those that make use thereof with the title-holder's consent.
3. The serious use of a certification mark shall be gauged according to the persons qualified to use it.
4. The beginning or resumption of serious use within the 3 months immediately prior to the submission of a forfeiture request, starting from the end of an uninterrupted period of 3 years of non- use, shall not be considered if the measures for the beginning or resumption of the use are taken only after the holder learns that a forfeiture request is to be filed.
5. It shall be incumbent on the holder of the registration or his licensee, if such exist, to prove the use of the trademark, failing which the trademark shall be deemed not used.
NAMES AND EMBLEMS OF ESTABLISHMENTS
SUBJECT MATTER OF PROTECTION
(Subject matter of protection)
Protection under the present Statute, by means of a title to a name and emblem of establishment, can be conferred only on the distinctive signs of an establishment wherein business is conducted in accordance with the provisions of the present section.
(Establishment emblem)
1. For the purpose of the present it Statute, an establishment emblem shall be deemed to be any external sign composed of illustrations or drawings, alone or combined with the name of the establishment, or with other words or mottos.
2. The decoration of the facades and of that part of shops, stores or factories exposed the public, as well as the colours of a flag, may constitute an emblem that perfectly individualizes the respective establishment.
(Exceptions to protection - renunciation)
The provisions of article 199 shall apply, mutatis mutandis, to the name and emblem of an establishment.
(Non-prohibited constituent elements)
The respective registration shall not be hindered by the fact that the requested name or emblem contain:
a) Any fancy or specific designations;
b) Historical names, with the exception of those the use of which would be detrimental or offensive to the esteem in which such names are generally held;
c) The name of the property or premises of the establishment, when this is admissible or accompanied by a distinctive element;
d) The name or distinctive elements of the company name and the pseudonym or nicknames of the proprietor;
e) The branch of activity of the establishment, provided that is accompanied by distinctive elements.
(Forbidden or conditional constituent elements)
1. The following may not form part of the name or emblem of an establishment:
a) Names, designations, illustrations or drawings that are reproductions or imitations of names or emblems of establishments already registered by somebody else;
b) Constituent elements of a trademark or industrial model or design, protected by another, for products manufactured or sold or services rendered in the establishment for which the name or emblem is intended;
c) Words or phrases in a foreign language other than simple geographical designations, unless the establishment belongs to nationals of the respective country;
d) Designations indicating a nationality or having any other like sense, except if the establishment belongs to an individual or body corporate of that nationality or having an actual establishment in the country or territory in question.
2. Authorization for the use of name or insignia and other such elements shall be considered assignable by legal succession, unless expressly restricted.
3. The provision of sub-paragraph 1(a) shall not prevent two or more persons with identical surnames from including them in the name or emblem of their respective establishments, as long as they are perfectly distinguishable.
RIGHT TO THE NAME AND EMBLEM
(Right to the name and emblem)
Anyone with a legitimate interest and more specifically farmers, livestock-breeders, industrialists, merchants and other entrepreneurs, domiciled or established in the Territory, shall be entitled to adopt a name and an emblem to designate their establishment and make its known pursuant to the terms of the following provisions.
REGISTRATION OF THE NAME AND EMBLEM OF AN ESTABLISHMENT
(Form of application)
1. The application to register the name or emblem of an establishment shall be submitted in writing in the official language of the Territory indicating the name or corporate style of the applicant, his/its nationality and domicile or place of establishment, and identifying the name and/or emblem whose registration is requested.
2. The date of the delivery of the application is that relevant for the purpose of priority.
(Complementary elements of the application)
1. The registration application shall further include the following elements:
a) A document proving that the applicant owns the establishment actually and not fictitiously and, more specifically, the industrial or administrative licence, or some identical type of document, or the property registration certificate or some other documentary proof, in the case of article 236(c), save if there be just reason preventing the presentation of that document;
b) A declaration by the applicant that for the same establishment there does not exist any previous registration of name and emblem of establishment.
2. When applicable, the application should also be accompanied by the following elements:
a) Proof of consent for or the legitimacy of use of a personal name that does not belong to the applicant;
b) Proof of consent or of legitimacy of use of a corporate style, or just a characteristic part thereof, if it does not belong to the applicant and is likely to mislead or confuse the consumer;
c) Proof of consent for the use of the expression "formerly warehouse", "formerly company", " formerly factory" and other similar expressions when, in the application reference is made to establishments whose name or emblem are registered in the name of somebody else;
d) Proof of consent for the use of the expression "former employee", "former master", "former manager" and other similar expressions, referring to another individual or body corporate;
e) Proof of the legitimacy of use of indications of relationship and of the expressions "heir", "successor", "representative" or "agent" and the like;
f) Such authorizations and elements of proof as are referred to in article 207, when the situations there foreseen for the trademarks obtain in relation to the name or emblem requested;
g) Proof of the exceptional admissibility of the constituent elements referred to in article 236(1(c) and (d)).
3. If the application concerns the emblem, it shall also be accompanied by:
a) Two graphic representations of the emblem, whenever possible as a photocopy or drawing, printed or pasted in the space provided for that purpose on the form;
b) A photolithograph, or some other medium to be defined by the DES, showing a reproduction of the sign of the emblem that it is wished to register.
(Unity of application and registration of the name and emblem)
1. An application may refer to only one name and emblem and any given establishment can have only one name and emblem registered.
2. If the registration of more than one name or emblem be applied for in relation to the same establishment, the DES will instruct the applicant to choose just one of them and to drop the others.
3. If more than one name or emblem are registered in relation to the same establishment, the DES will instruct the holder to choose just one of them and to drop the others.
4. In the absence of any response to the notifications referred to in sub-paragraphs 2 and 3, only the first request or registration will be considered, the remaining requests being refused or declared forfeit, as applicable.
(Examination as to form)
1. Once the DES has received the application, it shall proceeds to its formal examination within 1 month, to ensure that it is properly accompanied by all of the items required under article 240.
2. If the application is lacking some of the required items, or should they not be in order, they shall be rectified by the applicant within 2 months of the notification that the DES will send
him to that effect or, failing such notification, in a maximum of 3 months from the filing of the application, both extended by 1 additional month, if so requested for good reason.
3. Failure to send of the notification referred to paragraph 2, as well as its non-reception, shall not dispense the applicant, for the purpose of granting the name and emblem, from rectifying the shortcomings of the application within the legal period.
4. If, by the end of the applicable period pursuant to paragraph 2, it is found that the inadequacies or irregularities of the application have not been rectified, the application shall be refused and a notice to that effect published in the Official Bulletin.
(Publication of the application)
The DES shall have the application published in the Official Bulletin, in order that an objection may be raised by anyone who feels prejudiced by the possible granting of the registration.
(Subsequent formalities)
The provisions of article 211 to 213 shall, mutatis mutandis, apply to the application to register a name and emblem of establishment.
EFFECTS OF REGISTRATION OF NAME AND EMBLEM
(Duration of registration)
The duration of registration shall be 10 years from the date of the respective granting, infinitely renewable for like periods.
(Rights conferred by the registration)
1. Notwithstanding the protection derived from other legal provisions, the registration of the name or emblem under this Statute shall confer on the holder the right to prevent third parties, without his consent, from using any identical sign or one likely to be confused with it in their establishments.
2. The registration shall moreover confer the right to prevent the use of any sign that contains the name or the emblem registered.
3. The registration of the name and emblem of the establishment shall mere imply a legal presumption of the requirements for its granting.
(Relationship with corporate styles and company names)
The provisions of article 222 shall apply, mutatis mutandis, to the registration of the name and emblem of an establishment
USE OF THE NAME AND EMBLEM
(Indication of the name or emblem)
During the term of the registration, the proprietor of the name or emblem shall be entitled to add thereto the designation "Nome registado" (Registered Name) or "Insignia registada" (Registered Emblem) or simply "NR" or "LR", in Portuguese, or else the equivalent expression in Chinese (....).
(Inalterability of the name or the emblem)
1. The name and emblem shall remain unaltered, any change in their component elements being subject to a new registration.
2. The inalterability of emblems shall be understood, mutatis mutandis, in accordance with the rules established in article 224(2) and (3).
(Assignment)
1. The rights deriving from the registration application or the registration of names and emblems of establishments may be assigned, be it for a consideration or not, with the establishment, or part of the establishment to which they belong and in accordance with the legal formalities required for the assignment of the establishment itself.
2. Notwithstanding the provision of the following paragraph, the assignment of the establishment shall include that of the respective name and emblem that may continue as registered, except where the assignor reserves them for another establishment, present or future.
3. If the name or emblem of establishment includes the name of the individual or body corporate that owns or has applied for the respective registration, or of someone the holder or applicant represents, an express clause shall be necessary for its assignment.
ANNULMENT OF REGISTRATION OF NAME AND EMBLEM
(Annulment of name or emblem registration)
The provision of article 47 shall apply to the registration of a name or emblem but the respective nullity shall not be declared, even though the name or emblem be constituted by signs as stipulated in article 199(1(b) and (c)), if they have acquired a distinctive character.
(Annulability of the name and emblem registration)
1. The name and emblem registrations may be annulled in the cases foreseen in article 48 and, moreover, when the title was granted without presentation of the elements of proof and authorizations required under article 240.
2. The registration of the emblem shall also be annullable if it was granted in breach of the provisions of article 214(1(b) and (c)) and (2)..
3. Article 230(2) to (5) shall apply, mutatis mutandis, to the case referred to in the previous paragraph.
(Forfeiture of the name and emblem registration)
1. The name and emblem registration shall be forfeit:
a) In the cases foreseen in article 51(1);
b) If the respective establishment is closed or goes into liquidation;
c) If the registered emblem or name is not used for 5 consecutive years, except for good reason;
d) If it is modified in such a way as to prejudice its identity.
2. If it be found that there exist two or more registrations in relation to the same establishment, the DES will notify the holder of the registrations requiring it to choose one name and emblem and shall declare the others forfeit.
DESIGNATION OF ORIGIN AND GEOGRAPHICAL INDICATIONS
(Object of protection)
1. Under the present Statute, only the following can be protected by an designation of origin:
a) The name of a region, a specific locality or a country or territory that is used to designate or identify a product originating from that region, specific locality or country or territory, whose quality or characteristics are essentially or exclusively due to the geographical environment, including natural and human factors, and whose production, transformation and creation are conducted in the demarcated geographical area;
b) Certain traditional designations, be they geographical or not, which designate a product originating from a region or specific locality and that satisfy the conditions foreseen in the previous sub-paragraph.
2. Under the present Statute, only a geographical indication, the name of a region, specific locality or, in exceptional cases, country or territory can be protected that is used to designate or to identify a product originating from that region, specific locality or country or territory or, whose reputation, specific quality or other characteristic can be attributed to that geographical origin and whose production and/or transformation and/or creation is conducted in the demarcated geographical area.
3. Designations of origin and geographical indications, when registered, shall constitute the common property of the residents or persons who are actually and seriously established in the region in question and may be used indiscriminately by persons who, in that region, exploit any characteristic area of production when duly authorized by the holder of the registration to do so.
4. The exercise of this right shall not depend on the extent of the exploitation nor on the nature of the products, and the designation of origin or geographical indication shall consequently apply to any products characteristic of and originating from the locality, region or territory, provided that the demarcations and other traditional and usual or properly regulated conditions are observed.
(Registration application)
1. The application for registration of a designation of origin or a geographical indication shall be filed, in writing, in the official language of the Territory, indicating the name of the individuals or bodies corporate, public or private, that are entitled to acquire the registration and shall be accompanied by the following information:
a) The name of the product or products on which it is intended to use the designation of origin or geographical indication;
b) The traditional or regulated conditions for the use of the designation of origin or the geographical indication and the limits of the respective locality or region.
2. The registration certificate shall, in the pertinent part, bear the text of the registration process of the name and emblem of the establishment.
(Grounds for refusing the registration of designations of origin)
Requests for the registration of designations of origin or geographical indications shall be refused if:
a) Any of the general grounds for refusing to grant of industrial property rights obtains pursuant to article 9(1);
b) It constitutes a reproduction or imitation of a previously registered designation of origin or geographical indication;
c) It is liable to mislead the public, namely as to the nature, quality and geographical origin of the respective product;
d) It constitutes an breach of industrial property rights or of a copyright.
(Duration of registration)
Designations of origin and geographical indications shall be unlimited in duration and their ownership shall be protected by the application of the provisions foreseen in the present Statute or in special legislation, as well as by those governing false indications of origin, independently of registration and of the fact that they do or do not form part of a registered trademark.
(Indication of registration)
During the term of the registration, products on which the respective use is authorized may bear the mentions "Denominação de origem registada" (Registered designation of origin) or "DOR", "Indicação geográfica registada" (Registered geographical indication) or "IGR", in Portuguese, or else the equivalent expressions in Chinese (....).
(Rights conferred by the registration)
1. The registration of the designation of origin or of the geographical indication shall confer the right to prevent:
a) Use, by a third party, in the designation or presentation of a product, of any means that indicate or suggest that the product in question originates from a geographical area different from the true place of origin;
b) Any use that constitutes an act of unfair competition, within the terms of article 10bis of the Paris Convention, in its Stockholm revision of 14 July 1967;
c) Use by anyone who is not authorized by the holder of the registration.
2. The constituent words of a legally defined, protected and monitored designation of origin or geographical indication may not appear, in any form, in designations, tags, labels, advertisements or any other documents concerning products that do not originate from the respective demarcated regions.
3. The prohibition referred to in the previous paragraph shall be applicable even if the true origin of the products is mentioned or if the words constituting the designations or indications are accompanied by qualifiers such as "kind", "type", "quality" or the like and it shall be extended to the use of any expression, display or graphic combination liable to confuse the public.
4. Similarly prohibited shall be the use of designations of origin or geographical indications of prestige in Macao, for products bearing no identity or likeness, whenever the ir use seeks, for no valid reason, to derive improper advantage from the distinctive character or the prestige of the previously registered designation of origin or the geographical indication or stands to harm them.
5. The provisions of the previous paragraphs shall not prevent a seller from affixing its name, address or trademark to products from a region, country or territory different from that in which the same products are sold, provided that the trademark of the producer or manufacturer be maintained on such products.
6. The registration of a designation of origin or geographical indication shall imply a mere legal presumption of the requirements of its granting.
(Relationship with corporate styles and company names)
The provisions of article 222 shall apply, mutatis mutandis, to the registration of appellations of origin or geographical indications.
(Annulability of registration of designations of origin or geographical indications)
Registrations of designations of origin or geographical indication may be cancelled in the cases envisaged in article 48(1) and, moreover, if:
a) They constitute a reproduction or imitation of a previously registered designation of origin or geographical indication;
b) They are likely to mislead the public, namely with respect to the nature, quality and geographical origin of the respective product;
c) They are in breach of industrial property rights.
(Forfeiture of registration of designations of origin or geographical indications)
1. The registration of a designation of origin or a geographical indication shall lapse:
a) In the cases envisaged in article 51(1);
b) At the request of any interested part when, by virtue of bona fide, traditional and established commercial practices, the designation of origin or the geographical indication, becomes a simple generic designation for a manufacturing system or a certain type of product.
2. Wine products, medicinal mineral waters and other products whose geographical denomination of origin is subject to special protection and monitoring legislation in the respective country or territory shall form an exception to the provision in the previous paragraph.
AWARDS
(Subject matter of protection)
The present Statute can confer protection on the registration of an award only for:
a) Decorations of merit conferred by the Territory or by other countries or territories;
b) Medals, diplomas and prizes in money or of any other nature obtained at official exhibitions, fairs and competitions, or officially recognized by the Territory or by other countries or territories;
c) Diplomas and certificates of analysis or commendation issued by laboratories and other public services of the Territory or by organisms qualified for such purposes;
d) Titles of supplier to official bodies and other entities or official establishment, of the Territory or of other countries or territories;
e) Any other prizes or demonstrations of preference of an official character.
(Right to the registration)
The right to register an award shall lie with to the proprietor of the company to which the official prizes or demonstrations of preference referred to in the previous article have been attributed.
(Registration application)
The application for the registration of awards shall be submitted, in writing, in one of the official languages of the Territory, indicating the name or corporate style of the applicant, his/its nationality and domicile or place of establishment, and shall be accompanied by the following items, in triplicate:
a) The awards to be registered, the bodies that conferred them and the respective dates;
b) The products or services in respect of which the awards were conferred;
c) The name of the establishment to which the award is linked, in all or in part, when applicable.
(Items to accompany the application)
1. The registration application shall be accompanied by:
a) The originals or certified photocopies of the diplomas or titles;
b) A duly legalized copy of the official publication in which the award was conferred or published, or simply the part thereof necessary and sufficient to identify it.
2. The DES may demand a translation into one of the official languages of the Territory of diplomas or other documents couched in other languages.
3. The registration of awards including references to names or emblems of establishment shall be conditional on the prior registration of such names or emblems.
(Grounds for refusing the registration of awards)
The application for the registration of awards shall be refused if:
a) Any of the general grounds for refusing the granting of industrial property rights obtains according to article 9(1);
b) It is proven that they have been applied to products or services other than those on which they were conferred;
c) The proprietorship thereof has been assigned without the establishment or the respective part thereof, if applicable;
d) It has been shown that the award has been revoked or cancelled.
(Effects of registration)
The registration of awards shall guarantee the veracity and authenticity of the right to having been granted them and it ensures the holders their exclusive use for an indefinite period.
(Restitution of documents)
1. On expiry of the deadline for appealing against the granting or refusal of registration, the diplomas or other documents contained in the file shall be returned to the applicant upon request and shall be substituted in the file by certified photocopies.
2. Documents shall be returned to applicants in return for a receipt which shall be placed in the file.
(Indication of awards)
The use of awards legitimately obtained shall be permitted without registration, but only after registration can a reference to or a copy of them be accompanied by the designation "Recompensa Registada" (Registered Award" or of the abbreviations "R.R.","RR" or «RR», in Portuguese, or else by the equivalent expression in Chinese (....).
(Assignment)
The assignment of ownership of awards shall be conducted in accordance with the legal formalities required for the assignment of the company to which they relate and the provisions of article 250(2) shall apply mutatis mutandis.
(Conditions under which mention may be made of the awards)
The awards may not be applied to products or services different from those on which they were conferred.
(Annulability of award registrations)
Award registrations may be annulled in the cases provided for in article 48(1) and, moreover, when the right to the award is cancelled.
(Forfeiture of the registration of awards)
1. The award registrations shall be forfeit:
a) In the cases envisaged in article 51(1);
b) If the granting of the reward be revoked or cancelled by the entitled party.
2. Forfeiture of the registration shall terminate the right to make exclusive use of the award.
LEGAL RECOURSE
(Legal recourse)
Recourse shall lie to the Common Court of Justice against decisions:
a) Whereby industrial property rights are granted or refused;
b) Relating to assignments, licences, declarations of forfeiture or any other decisions that affect, modify or terminate industrial property rights.
(Right to appeal)
The applicant or owner of the industrial property right at issue, the claimants, as well as the successors of both and, in general, anyone directly and effectively prejudiced by the said decisions shall be legally entitled to file an appeal against decisions of the DES.
(Deadline for appeal)
The appeal should be lodged within 1 month of the date of publication of the decision in the Official Bulletin or of the date of the certified copy of the decision, whichever the sooner and if requested by the appellant.
(Response-referral of proceedings)
1. Once the action has been filed, a copy of the appeal petition and of the respective documents shall be sent to the DES, in order that the entity that handed down the contested decision may respond or in case it be advisable to submit or have submitted to the court the file on which the original decision was based.
2. If it is found that the file contains sufficient information to enlighten the court, the DES shall submit it together with a referral notice within 15 days.
3. Should this not be the case, the referral notice shall contain a reply to the allegation in the petition and shall be sent, with the file, within 1 month.
4. When, for any justified reason, the deadline in the previous paragraph cannot be observed, the DES shall, in good time, apply to the court for such extension as seems necessary.
(Citation by the opposing party)
1. If there exists an opposing party, that party shall be notified by the court to reply within 1 month should it so wish.
2. Notification of the opposing party shall always indication that that party is obliged to participate in the hearings through an appointed lawyer.
3. A decision wholly or partially revoking or amending a previous decision shall substitute that decision in the precise terms in which it was stated.
4. The DES shall never be considered to be an opposing party.
(Request for technical expertise)
If the appeal contains a technical problem requiring further information or if the court deems it appropriate, it may at any time request the attendance, on a day and at a time it shall designate, of the DES technician or technicians on whose opinion the appealed decision was based , in order that they may orally provide any explanations needed.
(Representation of the DES)
The Director of the DES may produce allegations and exercise any other procedural powers corresponding to those of the other appellees, including that of refuting the decisions handed down in the contentious appeal, either through an appointed lawyer or a legally qualified person acting as legal counsel for that purpose.
(Appeal against the court decision)
The decision handed down may be appealed by the process civil of law.
(Publication of the final decision)
Once the decision has been handed down, the court registrar shall send the DES a typewritten copy or a version on a medium considered appropriate for the purpose of registration and, if
appropriate, for the purposes envisaged in article 10(1(j)).
MONITORING AND PENALTIES
GENERAL PROVISIONS
(Timing of supervision)
Goods and services shall be monitored to ensure the defence of industrial property rights at all phases and in all sectors of the production process, including in the public sector.
(Competent bodies)
1. The monitoring referred to in the previous article shall be conducted by the DES through the Inspectorate of Economic Activities without prejudice to the powers vested by law in the criminal police and other entities, specifically the Marine and Fiscal Police.
2. The DES may, in the performance of its monitoring functions, call on the assistance and intervention of other entities.
(Seizure at points of entry)
1. The Marine and Fiscal Police may, as a precautionary measure, seize any products or goods at the point of import or export which, in any obvious way contain any form of false indications or denominations of origin, trademarks or names illicitly used or applied or that indicate the commission of any infringement provided for in the present Statute.
2. The owner or consignee of the seized products shall be notified in the most expedient manner and required to provide the necessary explanations and he shall, notwithstanding any liabilities he has already incurred, be permitted to rectify the situation of the item that has been placed under precautionary seizure.
3. Seizure may also be exercised on request, submitted on the spot or in advance, by anyone who demonstrates a legitimate interest in so doing.
4. The seizure shall lapse if, within 10 working days of the holder of the industrial property rights having been notified thereof, the Public Prosecution Service or the injured party has not filed a court suit for confirmation of the findings.
5. The period referred to in the previous paragraph may be extended by equal periods in duly justified cases.
(Unspecified precautionary measures)
In addition to the provisions of article 286(3), provisional measures may be ordered pursuant to the terms of the Statute of Civil Procedure of Macao for common provisional procedures, in cases in which any of the violations foreseen in the present Statute are found to obtain.
(Commitment to inform)
1. Whenever an authority or an agent of an authority notes any breach of the provisions in the present Statute it/he shall draw up or have drawn up a report which shall be forwarded to the DES.
2. In the case of suspicion of criminal practices, the report shall simply be forwarded to the Public Prosecution Service within 5 days.
UNLAWFUL ACTS
TYPES OF UNLAWFUL ACTS
(Violation of the exclusivity of a patent or of the topography of semiconductor products)
Obtaining illicit benefit for oneself or for a third party within the context of an entrepreneurial activity without the consent of the holder of the industrial property right shall be punishable by a prison sentence of up to 2 years or by a fine accumulating for from 60 to 120 days in the following cases:
a) Manufacturing artefacts or products protected by a patent or semiconductor product topography;
b) Use or application of methods or processes protected by a patent or by a semiconductor product topography;
c) Importing or distributing products obtained by any of the means referred to in the foregoing paragraphs.
(Violation of exclusive rights relating to designs or models)
Obtaining illicit benefit for oneself or for a third party within the context of an entrepreneurial activity without the consent of the holder of the industrial property right shall be punishable by a prison sentence of up to 2 years or by a fine accumulating for from 60 to 120 days in the following cases:
a) Reproducing or imitating totally or in part the characteristics of a registered design or model;
b) Exploiting a registered design or model;
c) Importing or distributing designs or models obtained by any of the means referred to in the foregoing paragraphs.
(Counterfeiting, imitation and illegal use of trademark)
Obtaining illicit benefit for oneself or for a third party within the context of an entrepreneurial activity without the consent of the holder of the industrial property right shall be punishable by a prison sentence of up to 3 years or by a fine accumulating for from 90 to 180 days in the following cases:
a) Counterfeiting, totally or partially, or in any way reproducing a registered trademark by any means;
b) Imitating a registered trademark in whole or in any of its characteristic parts;
c) Using false or mock marks;
d) Using, counterfeiting or imitating well-known trademarks whose registration has already been applied for in Macao;
e) Using trademarks, even though in products or services bearing no identity or likeness,
which are a translation, the same as or similar to previous trademarks whose registration has been applied for and which enjoy prestige in Macao, whenever the use of the subsequent trademark seeks, without fair reason, to derive improper advantage from the distinctive character or the prestige of the previous trademark or can in any way damage it.
f) Using, in their products, services, establishment or company, a registered trademark belonging to somebody else.
(Sale, circulation or concealment of products or goods)
Anyone selling, circulating or concealing products counterfeited by any of the means and in the conditions referred to in articles 289 to 291 and being aware of that situation shall be subject to a prison sentence of up to 6 months or a fine accumulating for from 30 to 90 days.
(Violation and illegal use of designations of origin or geographical indications)
Seeking to obtain illicit benefit for oneself or for a third party within the context of an entrepreneurial activity shall be punishable by a prison sentence of up to 2 years or by a fine accumulating for from 60 to 120 days in the following cases:
a) Reproducing or imitating, totally or partially, a designation of origin or a protected geographical indication;
b) Using on products signs that constitute a reproduction or imitation of designations of origin or geographical indications without being duly entitled to use such designations or indications, even though they may indicate the true origin of the products or the designation or be used either in translation or accompanied by expressions such as "like", "type", "style", "imitation", "rival of", "superior to" or similar.
(Industrial property rights obtained in bad faith)
1. Anyone who, in bad faith, obtains for himself or for a third party an industrial property title in respect of a right he does not own shall, under the applicable provisions of the present Statute be liable to a prison sentence of up to 6 months or a fine accumulating for from 60 to 90 days.
2. In deciding on the sentence for the violation, the court shall unofficially cancel the title at issue or, when applicable, order that it be assigned to the person to whom it legitimately belongs, should that person so request.
3. The request for the assignment of the title referred to in the previous paragraph may be filed with the court independently of the criminal proceedings resulting from the violation.
OTHER PROVISIONS
(Monitoring and apprehension)
1. The Criminal Police shall unofficially conduct such monitoring and preventive inspections as be appropriate, independently of the opening of the inquiry.
2. The legal authorities shall order that an expertise be conducted on items held under precautionary seizure whenever this appears necessary in order to determine whether such items are or are not manufactured or marketed by the holder of the right or by some duly authorized party.
(Fate of seize items)
1. The Territory shall confiscate:
a) Items involved in a criminal breach of the present Statute;
b) The materials or instruments predominantly used for the commission of that crime.
2. Items declared confiscated under sub-paragraph 1(a) above shall be total or partially destroyed whenever it is not possible to eliminate that part thereof that bears the distinctive sign or is in violation of the offended right and, although such elimination may be possible, provided that the title-holder does not give express consent to such items being returned to the market or otherwise disposed of.
(Assistants)
Besides the people on whom the Law of Penal Procedure confers the right to act in respect of offences committed under the present Statute, other persons may be co-opted as assistants in investigating crimes herein foreseen, namely:
a) Legally constituted employers' associations;
b) Legally constituted consumers' councils and consumers' associations.
(Referral and subsidiary right)
The offences foreseen in the present chapter shall be subject to the provisions of articles 2 to 6, 9 to 16 and 18 of Law no.6/96/M, of 15 July 1996, and, subsidiarily, the Macao Penal Statute and Macao Statute of Penal Procedure.
ADMINISTRATIVE OFFENCES
TYPES OF ADMINISTRATIVE OFFENCES
(Illegal reference to or use of awards)
A fine of 20 000.00 to 250 000.00 patacas or of 50 000.00 to 500 000.00 patacas, depending on whether the perpetrator be an individual or a body corporate, shall be incurred by anyone who, in the performance of an entrepreneurial activity:
a) Mentions or refers to an award registered on behalf of somebody else, when that reference or mention is for the purpose of obtaining an illicit benefit for him/itself or for a third party;
b) Uses or falsely entitles himself the holder of an award that never existed;
c) Uses drawings or any imitative indications of awards registered in the name of some other person in correspondence or advertising, on signs, facades or shop windows of the establishment or in any other way without the title-holder's consent.
(Violation of name and emblem rights)
A fine of from 20 000.00 to 250 000.00 patacas or of 50 000.00 to 500 000.00 patacas, depending on whether the perpetrator be an individual or a body corporate, shall be incurred by anyone who, in the performance of an entrepreneurial activity and without the title-holder's consent, uses in his/its establishment, in announcements, correspondence, products or services or in any other form, a name or emblem that is a reproduction or that constitutes an imitation of the name or of emblem already registered by somebody else.
(Use of illicit marks)
1. A fine of from 20 000.00 to 250 000.00 patacas or of 50 000.00 to 500 000.00 patacas, depending on whether the perpetrator be an individual or a body corporate, shall be incurred by anyone who, in the performance of an entrepreneurial activity :
a) Improperly uses in his/its trademark, any of the signs indicated in the article 207(1(d) to (i)) and in article 214(2(b) and (c));
b) Uses trademarks with false indications on the origin or the nature of the products;
c) Sells or makes available for sale products or goods with the marks forbidden by the previous paragraphs.
2. Products or items bearing marks prohibited by the previous paragraph may be apprehended at the request of the Public Prosecution Service and declared confiscated in favour of the Territory.
(Improper use of name or emblem of establishment)
A fine of from 20 000.00 to 250 000.00 patacas or of 50 000.00 to 500 000.00 patacas, depending on whether the perpetrator be an individual or a body corporate, shall be incurred by anyone who, in the performance of an entrepreneurial activity improperly uses in the name or emblem of his/its establishment, whether registered or not, any of the signs referred to in article 236(1(b)) and article 240(2(a) to (f)).
(Mention or improper use of private rights)
A fine of from 20 000.00 to 250 000.00 patacas or of 50 000.00 to 500 000.00 patacas, depending on whether the perpetrator be an individual or a body corporate, shall be incurred by anyone who:
a) Claims to be the owner of some industrial property right foreseen in the present Statute, without that right belonging to him/it, or when it has been declared null or void, if he/it was already aware of that declaration;
b) Uses or applies the indications of the patent or of registration without being entitled so to do;
c) Being the owner of an industrial property right, uses it for products or services different from those protected by the corresponding title.
(Lack of mandatory trademark)
A fine of from 5 000.00 to 50 000.00 patacas or of 10 000.00 to 100 000.00 patacas, depending on whether the perpetrator be an individual or a body corporate, shall be incurred by anyone who manufactures, markets or imports products or renders services without a trademark when such a trademark is mandatory for those products or services.
SUNDRY PROVISIONS
(Perpetrators and responsible parties)
1. Anyone who, personally or through another, directly participates in the performance or, in collusion or together with another or others, commits the act and also anyone who feloniously induces another to commit the act, shall, once the act has been committed or the commission of the act has commenced be subject to penalty as a perpetrator of the act.
2. Anyone whether an individual or a body corporate, although improperly constituted, and associations having no legal status may be held responsible, jointly or not, for committing the administrative offences envisaged in the present chapter.
3. Bodies corporate, although improperly constituted, and associations with no legal status shall be held responsible for administrative offences committed by the members of their respective organs and by the holders of administrative positions, directors or managers in the exercise of their functions, as well as for offences committed by representatives of the body corporate in acts performed in the name and interest of that body.
4. The responsibility foreseen in the previous paragraph shall not apply when the agent acted against the orders or express instructions of the persons entitled to issue the orders.
5. The legal invalidity and the inapplicability of the acts on which are based the relationship between the individual agent and the body corporate shall not detract from the terms of paragraph 3.
6. The responsibility of the body corporate shall not exclude the individual responsibility of the members of the respective organs, and of those who in those organs exercises the functions of director, manager or administrator or who represent the body legally or voluntarily.
(Determination of administrative penalties)
In determining the administrative penalty to apply, account shall be taken especially of:
a) The gravity of the offence, the fault, powers and financial situation of the agent in question;
b) Whether the administrative offence would have resulted in very high profits, gauged according to the criteria of the Macao Penal Code.
(Reduction or waiver of penalties)
1. The administrative penalties foreseen in the present chapter may be reduced or waived when circumstances exist prior or subsequent to the offence, or contemporary therewith, that attenuate the gravity of the offence, the agent's fault or the need for the penalty.
2. For the purpose of the provision of the previous paragraph, account shall be taken, inter alia, of the occasional nature of the offence and the extent to which the agent assisted in the discovery of the truth.
(Repeated offences)
1. Article 70 of the Macao Penal Code shall apply to repeated offenders.
2. For the purpose of the previous paragraph, a repeated offender shall be anyone who commits an identical administrative offence within 1 year of the decision that ultimately determined the penalty.
(Notices)
1. Notice of the administrative decision concerning the penalty shall be served on the offender personally or by registered letter, telegram or telefax, depending on the possibilities and the method most appropriate, at his registered office, office or domicile.
2. Notice served by registered letter shall be deemed served on the third working day following the registration, when served in the Territory.
3. Should any of the forms of notification referred to in paragraph 1 above prove impossible, the director of the DES shall determine how to substitute that form by that which appears most appropriate to the concrete case:
a) By a court order published for 30 days in the Official Bulletin, and by 2 proclamations, one to be posted at the DES and other in the last place of residence or professional domicile of the perpetrator, if known.
b) By the publication of announcements in two of the most widely read newspapers of the Territory, one in Portuguese and the other in Chinese.
4. The notices served on parties residing or located outside the Territory shall, in determining the periods, enjoy the extensions provided for in article 72 of the Macao Code of Administrative Procedure.
(Power to investigate and penalize)
1. Procedural investigations into the administrative offences foreseen in the present chapter shall fall within the purview of the DES.
2. The application of the administrative penalties shall fall within the jurisdiction of the director of the DES.
(Payment of fines)
1. Administrative fines shall be paid within 15 days from the date of notification of the penalty decision.
2. The payment of the administrative fines shall not release the perpetrator from payment of any consumption tax or charges due.
3. If the administrative fine is not voluntarily paid within the period set in paragraph 1 above, it shall be forcibly collected by the competent entity, pursuant to the debt-collection procedure using the executive payment order as enforcement warrant, except where the fines can be wholly paid from the product of the sale, by any legally permitted form, of the goods and objects seized under the terms of the present Statute.
4. Appeal against the application of administrative penalties shall lie to the Macao Administrative Tribunal.
(Liability for payment of fines)
1. Liability for the payment of fines shall lie with the perpetrator of the administrative offence.
2. The Administration may, in cases involving multiple perpetrators, demand payment of the totality of the administrative fines by any one of them, that party then having the right to claim their shares from the others.
3. Bodies corporate, although improperly constituted, and associations with no legal personality shall be held jointly and severally liable for payment of the fine to which their administrators, directors, managers, employees or representatives have been sentenced for committing the administrative offences envisaged by the present Statute.
4. The administrators, directors or managers of bodies, although improperly constituted, and of associations with no legal personality which, although in a position so to do, fail to impede the commission of the administrative offence, shall answer jointly and severally for the payment of the fines to which they are sentenced even though, on the date of the sentence such bodies or associations may have been dissolved or liquidated.
5. If the fine be applied to an association with no legal personality, the common assets of that association shall cover the fine and, should that not suffice, the assets of each of the partners and associates jointly and severally.
(Prescription)
1. The procedure for administrative offences envisaged in the present Statute shall lapse 2 years following the commission of the offence.
2. Administrative fines shall lapse 4 years after the date on which the decision on the penalty becomes final.
3. The periods of prescription applicable to the procedure and the fines and the terms according to which they shall be interrupted or suspended shall be governed by the provisions of article 111 to 113, 117 and 118 of the Macao Penal Code.
(Destination of fines)
The product of the administrative fines applied under the present chapter
shall accrue to the Territory.
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