RPmacau - GuideBook


Intellectual Property Protection Rights in Macau

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   For information about registration please consult our To Register section or for answers to your immediate questions, do not hesitate to contact us.


Legislation

Macau's Legislation
Applicable International Conventions


Legislation for the protection of intellectual property rights

  • Decree Law No. 43/99/M for the Copyright Code became law on 1 October 1999, followed by Decree Law No. 97/99/M for the Industrial Property Legal Code which came into force on 6 June 2000. These Statutes replace and revoke all previous legislation on industrial property matters as well as removing the jurisdiction of the Portuguese Institute of Industrial Property.


  • Although the extension of European Patents has been enacted, it is not yet in force.


International Conventions related to intellectual property that are applicable

  • Convention for the Protection of Industrial Property (Paris Union) signed in Paris, 20 March 1883, as revised in Stockholm 14 July 1967 and amended 2 October 1979.


  • Agreement Concerning the International Classification of Goods and Services for the Purposes of Registration of Marks signed in Nice 15 June 1957.


  • Convention for the Protection of Literary and Artistic Works (Berne Union) signed in Berne, 9 September 1886 as revised in Paris 24 July 1971, and amended 28 September 1997.


  • Universal Copyright Convention signed in Geneva, 6 September 1952 as revised in Paris 24 July 1971.


  • Agreement on Industrial Property Rights in Relation to Trade (TRIPS) came into force 1 January 1995.


  • Convention Abolishing the Requirements for Foreign Documents (Apostille) signed in The Hague 5 January 1965.


  • NB
    • The 1981 Madrid Agreement concerning the registration of Marks and the 1989 Protocol relating to the Agreement are not applicable in Macau, neither is the 1970 Washington Patent Cooperation Treaty.

    • Macau's classification of goods and services for the purposes of registration of Marks follows the Fourth Edition of the Nice Agreement.



Mark protection

Legal definition
Types of Marks
Limitations to legal protection
Preliminary formal examination
Official publication
Substantive examination
Use of the Mark
Appeal procedures
Validity
Transitional provisions


Legal definition


Types of Marks

  • Types of Marks include trade and service Marks, as well as collective Marks such as association and certification Marks.


Limitations to legal protection

Legal protection will not be granted to:

  • Signs or indications consisting exclusively of the shape of the product itself or of the constituents from which the final product is made.

  • Signs or indications which are commonly used to designate the geographical origin, kind, quality, quantity, shape of the goods and services or that have became usual and frequently used in commercial language.

  • Colours also cannot be registered per si unless combined in ways or used in graphics or words, which create a sense of distinctiveness in the Mark of the goods or services.

  • Registration will also be refused if the Mark contains signs or words falling under one of the following prohibitive items.


    • a Mark confusingly similar (reproduction, imitation or translation) to a Mark which is well-known in Macau, that, when applied to identical or similar products or services of the same classification, can mislead the consumer to establish a connection with the well-known Mark.


    • a Mark confusingly similar (reproduction, imitation or translation) to a previously registered prestigious Mark, which although designated for products or services not identical or similar, can provide unfair advantage to the similar Mark and damage the reputation of the current Mark.



Preliminary formal examination
  • Within one month of the application being filed, the IP Office will commence a formal examination to verify that the application form is completed correctly, all the required documents are filed with the application form, and that goods and services are correctly classified.

  • If the application is short of any of the required documents, or if goods and services are wrongly classified, the applicant must take the necessary measures in order to rectify irregularities or the relevant late filed documents within a period of two months after being notified by the IP Office; otherwise the registration petition will be refused and the refusal published in the Official Gazette.



Official publication
  • Once the application is considered to be properly completed, the IP Office will publish the preliminary notice of the Mark application in the Official Gazette.

  • Within a period of two months after publication, any interested party may oppose the application. The applicant will be given a month to answer the opposition claim.



Substantive examination
  • In this phase of the registration process, the IP Office will conduct a search for conflicting registered Marks. In essence, the examination conducted upon the Mark in question consists of verifying if the conditions of Mark registration are fulfilled, namely the distinctive character, confusing similarity in signs; non-prohibited signs, and the veracity of the Mark. A thorough examination is also carried out to prevent any possible confusion of Portuguese, Chinese, English or other characters and sounds, or any other conflicting factors, with a previously registered Mark.



Use of the Mark
  • If the Mark is not seriously used for a continuous three year period the registration may be forfeited and subject to revocation.



Appeal procedures
  • Any interested party dissatisfied with the final decision of the IP Office may lodge an appeal at the Court of the First Instance. The appeal must be lodged within one month after the IP Office decision has been published in the Official Gazette.



Validity
  • The registration is valid for a period of seven years from the granting date and is renewable indefinitely for the same period. The owner of the registered Mark will benefit from the legal presumption of its novelty, distinctiveness, and veracity.



Transitional provisions
  • Macau Industrial Property Code - Decree-law 97/99/M in operation since 7 June 2000.

  • Marks are valid for seven years from the date of approval.

  • Macau Mark Law - Decree-law 56/95/M in operation from 6 December 1995 until 6 June 2000.

  • Marks are valid for seven years from the date of application.

  • Portuguese Industrial Property Code valid until 5 December 1995.Marks are valid for 10 years from the date of approval.

  • Marks, granted before 6 December 1995 are valid for 10 years from the date of approval.

  • Marks, granted between 6 December 1995 and 7 June 2000 are valid for seven years from the date of application.

  • Marks, granted after 6 June 2000 are valid for seven years from the date of approval.

  • Applications before 6 December 1995 and granted after that date if published in the Portuguese Industrial Property Bulletin are valid for 10 years from the date of approval. If they are published in the Macau Official Gazette they are valid for seven years from the date of application. (Provided they are not published in the Portuguese Industrial Property Bulletin)

  • Marks renewed after 6 December 1995 are valid for seven years from the renewal date.


   For information about registration please consult our To Register section or for answers to your immediate questions, do not hesitate to contact us.


Patent protection

Legal definition
Limitations of patentability
Biological processes, biological matter and bio-technical inventions
Non-opposable disclosures
Unity of request, invention and divisible applications
Validity
Transitional provisions


Legal definition

  • Any invention in any area of technology pertaining to products or processes to obtain a product, substances or compositions, even if they involve a product composed of or containing biological matter or any process that permits the production, treatment or use of biological matter as long as the inventions are novel, involve an inventive step and are able to be applied to industry.


Limitations of patentability

An invention will not be considered for Patenting:

  • if it is a scientific theory or mathematical method.

  • if the materials or substances used in the invention are found naturally or are nuclear matter.

  • if it involves any projects, rules or procedures for playing games or performing business, computer programs and mental acts, which all involve the presentation of material.

  • if the invention is such that its use would be illegal, contrary to public order, health or morals.

  • if it is an invention that involves surgical or therapeutic treatment and diagnosis of human or animal bodies or biological processes used to produce breeds of animal or varieties of plants.

  • if it includes the discovery of gene sequences, human cloning or genetic modification processes for commercial purposes.


Biological processes, biological matter and bio-technical invention

  • Any biological process for obtaining plant or animal matter is understood to be any procedure that involves crossing or selection from a natural phenomenon. Biological matter is understood to contain genetic information that in a biological system can be duplicated or reproduce itself. Microbiological manipulation or anything that produces microbiological material will be understood as a microbiological process.


Non-opposable disclosure

  • Any disclosures to scientific societies, technical associations, participation in universally recognised competitions, exhibitions or trade fairs will not influence the innovation of the invention as long as the application for the granting of the Patent is filed in Macau within a year. Neither will any revelations resulting from any abuse of the inventor or his successor.


Unity of request, invention and divisible applications

  • Only one Patent may be applied for per application and invention. Numerous inter-related inventions that make up a single inventive idea will be considered as a single invention. An independent claim for a product or process that has been especially developed for manufacture may be included in the same request in the same way that a device or mechanism developed for the manufacturing process or to carry out the process may also be considered as a single invention.

  • However, if the Patent registration request does not meet the requirements of unity of invention the applicant can divide the application to obtain the granting of the original request.

  • Multiple priorities can be applied for a Patent request and may be cited for the same claim although the priorities come from different countries or territories


Validity

  • The Patent is valid for a period of 20 years from the date of application. The Patent allows the owner the exclusive right to exploit the invention. The rights granted by the Patent may not exceed the scope defined for the claims and the Patent shall be granted with no guarantee as to the accuracy of the description and its validity may not be presumed by virtue of the fact that the respective certificate was granted.


Transitional provisions

  • Macau Industrial Property Code (in effect since 7 June 2000).The Patents are valid for 20 years from the date of application.

  • Portuguese Industrial Property Code (up to 6 June 2000). The Patents are valid for 20 years from the date of application but if the applications have been filed before 1 June 1995 the Patents are valid for 20 years from the date of application or for 15 years from the date of approval.


  • NB
    • The term for the protection of the Patents extended from Portugal to Macau before 7 July 2000 is tied to the expiry date of the Portuguese Patent and therefore of the same duration. However, annuities must be paid in Macau on the same due date as the Portuguese annuities to maintain their validity in Macau.

Complementary Certificate for the protection of medicines and phyto-pharmaceutical products

  • A complementary certificate for the protection of medicines and phyto-pharmaceutical products by law gives the right to an owner of an invention Patent to extend their protection for a period of not more than seven years. The application must be attached to a copy of the first authorisation to place the product on the Market in Macau. A summary of the characteristics of the product must also be included.


Utility Model protection

Legal definition
Validity
Transitional provisions


Legal definition

  • Utility Model provides protection to inventions that alter the configuration, structure, mechanism, or arrangement that increases usage or improves the output.

  • The applicant has the option to apply for a Patent for an invention or Utility Model either successively or simultaneously.

  • The Utility Model will cease to be effective once an invention Patent has been granted.


Validity

  • The Utility Model is valid for a period of six years from the date of application renewable for every two years for a maximum of 10 years.


Transitional Provisions

  • Macau Industrial Property Code (in effect since 7 July 2000).The Utility Models are valid for six years from the date of application, renewable for two additional periods of two years for a maximum of 10 years.

  • Portuguese Industrial Property Code (up to 6 June 2000). The Utility Models are valid for 15 years from the date of application but if approved before 1 June 1995 are valid for 15 years from the date the first payment is due after 1 June 1995. However, if the application was before 1 June 1995 and approved after this date they are valid for 15 years from the date of approval.


  • NB
    • The term for the protection of the Utility Models extended from Portugal to Macau before 7 July 2000 is tied to the expiry date of the Portuguese Utility Model and therefore has the same duration. However, annuities must be paid in Macau on the same due date as the Portuguese annuity to maintain their validity in Macau.

   For information about registration please consult our To Register section or for answers to your immediate questions, do not hesitate to contact us.


Industrial Design and Model protection

Legal definition
Validity
Transitional provisions


Legal definition

  • To obtain protection for a Design or Model, the appearance of a creation must represent the whole or part of a product in the form of characteristics such as lines, contours, colours, forms, textures, materials and/or ornamental used in the product itself.

  • The law defines a product as any industrial or crafted article, including the components for assembling a complex product, packaging, presentation elements, graphic symbols and wording, but excluding computer programs.

  • The Design or Model must be novel and unique.


Validity

  • The Design and Model are valid for a period of five years from the date of application, renewable every five years for a maximum of 25 years


Transitional Provisions

  • Macau Industrial Property Code (in effect from 7 June 2000).The Industrial Models and Designs are valid for five years from the date of application, renewable for four additional periods of five years for a maximum of 25 years.


  • Portuguese Industrial Property Code up until 6 June 2000. Industrial Models and Designs are valid for 25 years from the date of application but if granted before 1 June 1995 they are valid for 25 years from the date of the first payment after 1 June 1995 or if the application was before 1 June 1995 and approved after this date they are valid for 25 years from the date of approval.


  • NB
    • The term for protection of Industrial Models and Designs extended from Portugal to Macau is tied to the expiry date of the Portuguese Industrial Models and Designs and therefore of the same duration. However, quinquenniums must be paid in Macau on the same due date as the Portuguese payment to maintain their validity in Macau.

   For information about registration please consult our To Register section or for answers to your immediate questions, do not hesitate to contact us.


Topographies of Semi-Conductor products protection

Legal definition
Validity


Legal definition

  • A Topography registration certificate can protect the Topography of Semi-Conductor products if previously unknown throughout the Semi-Conductor industry. The Topography of a Semi-Conductor is a group of related images, either fixed or codified, which represent a three-dimensional layout of the layers of which the product is composed and in which the each image has a layout or part of the layout of a surface of the same product.

  • A Semi-Conductor product is recognised at any stage of in the accumulation of its development consists of a body of material:


    • which includes a layer of semi-conductive material:


    • one or more layers of conductive, insulating or semi-conductive material in a pre-determined three-dimensional model:


    • and is designed to carry out an electronic function either independently or in conjunction with other functions.



Validity

  • The Topography of a Semi-Conductor product is valid for a period of 10 years from the date of application or from the date that the topography is initially put to use, dependent on which takes place first.


Appellations of Origin and Geographical Indications protection

Legal definition

Validity

Legal definition
Appellations of Origin

  • the name of a region, locality, country or territory including traditional designations which are customarily used to identify a product originating from said area.
  • where the quality or characteristics, essentially and exclusively are attributed to the geographical environment including natural and human factors.
  • whose production, preparation, and modification occur in that geographical location.


Geographical Indications:
  • the name of a region, locality or in some cases a country or territory, which is used to identify a product originating from the said area.
  • whose reputation, qualities, or other characteristics can be attributed to that geographical origin and whose production and/or modification occur in that geographical area.


validity

The registration is valid for an indefinite period unless the application of origin or the Geographical Indication is changed to a simple generic designation of an manufacturing process or of a product.


Names and Emblems of Establishment's protection

Legal definition
Validity

Legal definition

  • A Name or Emblem may be used to designate or promote an establishment belonging to: farmers, industrialists, traders, and/or other entrepreneurs domiciled or established in Macau.

Validity

  • The registration is valid for a period of 10 years from the granting date, which is renewable indefinitely for the same period.

Awards protection

Legal definition
Validity


Legal definition

Awards that can be protected by registration are:
  • Merit Awards conferred by Macau SAR, other countries or territories.
  • Medals or diplomas and rewards either monetary or otherwise from exhibitions, fairs and competitions official or officially recognized by Macau SAR, other countries or territories.
  • Diplomas, examination certificates or commendations issued by laboratories or other public services in Macau SAR or other qualified organisations.
  • Title of 'supplier' to official governmental bodies in Macau SAR, other countries or territories.
  • Any other official rewards or the like.


Validity

  • The registration is valid for an indefinite period unless the award is revoked or cancelled.

Copyright protection

  • As a founding member of the WTO and in accordance with the provisions of the TRIPS Agreement, Macau has passed legislation for Copyright Protection in compliance with the 1886 Berne Convention for Protection of Literary and Artistic Works, the 1952 Geneva Universal Copyright Convention and all subsequent updates to date. In addition, in compliance with the TRIPS Agreement, Macau law protects computer software programs as literary works.


  • As is the case in many other countries, Macau does not have a registration system for literary and artistic property. However, a high level of protection of copyright can be ensured by the existing law, which includes economic and personal rights.

Unfair Competition

Introduction
Trade secrets
Legislation


Introduction

  • The Government of Macau has established general provisions that set out the basic elements of a competitive policy, within its 1999 Commerce Code, titled 'Discipline of Competition Among Entrepreneurs'.
  • The Commercial Code, in Article 153 establishes a general principle that competition should be carried out in a form that does not damage the interests of the economy of Macau SAR and under the limits established in the law. A number of succeeding articles in the Code provide some indication as to the forms of conduct that would be detrimental to competition and are therefore prohibited.
  • As such the Government has established the basis for a formalised competition policy and given indications as to what the Government's intentions are with regard to commercial practices that can distort the proper functioning of markets and therefore impede economic prosperity.
  • The following prohibited conduct of unfair competition also applies to intellectual property protection.


    • Any acts likely to cause confusion with the goods, services or credit of competitors.


    • Fraudulent advertising, false descriptions and misleading information about the nature, quality or use of the goods and services that can deceive consumers concerning the place of origin, property of company.


    • False declarations made in the course of trade, industry, or services with the intention of discredicting the goods, services, or reputation of competitors. Namely, by mentioning their nationality, private life, religious beliefs and ideological convictions or any other personal information.


    • Imitation or reproduction of goods or services that may cause a risk of association in the mind of the consumer with the intention of obtaining personal benefit from the credit or reputation of the company name, brand, product or service owned by somebody else.


Trade secrets

  • A trade secret is considered to be any technical or commercial information of practical use, that is able to benefit the owner economically, that is not known to the public and all precautions have been taken by the owner to keep it confidential.
  • It is considered unfair when industrial or other trade secrets, which have been accessed legitimately, are divulged or exploited without the authorisation of the owner and the recipient is obliged to keep quiet. If they have been obtained illegitimately, it is still considered unfair if used for the above-mentioned conduct.


Legislation
 (Commercial Code-articles 153-173)


CHAPTER 1 Discipline of Competition Among Entrepreneurs

         Article 153 (Legal limitations)
         Article 154 (Contractual limitations)
         Article 155 (Obligation of contract)

CHAPTER 2 Unfair competitions

         Article 156 (Objective scope)
         Article 157 (Subjective scope)
         Article 158 (General clause)
         Article 159 (Acts of confusion))
         Article 160 (Acts of deception)
         Article 161 (Offers)
         Article 162 (Slanderous acts)
         Article 163 (Acts of comparison)
         Article 164 (Acts of imitation)
         Article 165 (Exploitation of the reputation of others)
         Article 166 (Disclosure of secrets)
         Article 167 (Contract violations, benefits and promotions)
         Article 168 (Exploitation of dependents)
         Article 169 (Sales at a loss)
         Article 170 (Unfair competition litigation)
         Article 171 (Sentencing)
         Article 172 (Damages)
         Article 173 (Legitimacy of entities representing groups)


Title X
Discipline of Competition Among Entrepreneurs


CHAPTER 1
Discipline of Competition Among Entrepreneurs

Article 153 (Legal limitations) 
    1) The competition among entrepreneurs must be carried out in a way that does not damage the interests of the economy of Macau and within the limitations of the law.

    2) All agreements and practices are prohibited that have the objective of, or are effective in distorting or restraining competition or, that can be affected by other special provisions.
Article 154 (Contractual limitations) 
    1) The contract that defines limitations in the competition among entrepreneurs must respect the limitations referred to in the previous article and laid out in written form, otherwise it is null and void.

    2) To ensure the contract is valid, it is necessary that it is limited to a certain area or specific activity.

    3) If the duration of the contract is not fixed or is fixed for a longer period, the validity can only be five years.
Article 155 (Obligation of contract) 
    The enterprise that operates under the conditions of a legal monopoly has the obligation to have a contract with anyone who requires the services of the enterprise, while observing the principles of equality.


CHAPTER 2
Unfair competition

Article 156 (Objective scope) 
    1) The conduct mentioned in this chapter is when practised in the market for the purpose of competition is considered unfair.

    2) It is presumed that an action practised for the purpose of competition when, under the circumstances in which it is carried out, shows suitable objectives for promoting and securing the distribution of products or services in the market of their own or others.
Article 157 (Subjective scope) 
    1) The rules of unfair competition apply to entrepreneurs and to all those who participate in the market.

    2) The rules of unfair competition apply to those who are or are not in the same field of activity.

Article 158 (General clause) 
    Unfair competition is considered to be behaviour that is revealed in an objectionable manner to be against the rules and honest business practices in every economic activity.
Article 159 (Acts of confusion) 
    1) It is considered unfair when an act that can create confusion with an enterprise, the products, services or the credit of competitors.

    2) Any act that misleads the consumers to associate the origin of the products or services is sufficient basis for unfairness of conduct.
Article 160 (Acts of deception) 
    It is considered unfair when the use of or the spreading of incorrect or false information or the omission of true facts. Any act that under the circumstances in which it is carried out is likely to induce misunderstandings about the nature, ability, quality, quantity, and actual benefits of the products or services provided.
Article 161 (Offers) 
    1) Offers made for the purpose of advertising and similar commercial practices are considered unfair when under the circumstances in which they are carried out place the consumer in a situation where they are obliged to purchase the service for which the offer has been extended.

    2) Any type of benefit or prize offered to the consumer on the purchase of a service provided is considered unfair if anything causes or may cause misunderstandings about the prices of other products or services from the same enterprise. Or, when it is difficult for the consumer to assess the actual value of the offer or to compare it with alternative offers is considered unfair.
Article 162 (Slanderous acts) 
    1) It is considered unfair when the use or the spreading of statements about an enterprise, the products, services or commercial relationships of the competitors which is able to damage its reputation in the market, unless the statements are exact, true and pertinent.

    2) It is not considered pertinent if the statements are about nationality, religious beliefs, or ideological convictions, private or otherwise that would be considered to do with an individuals private life.
Article 163 (Acts of comparison) 
    1) It is considered unfair when a public comparison is made with the products or services in areas that in reality are not similar, irrelevant or incomparable.

    2) It is also considered unfair for any comparison when it is made in accordance with articles 160 and 162, of their own or of others with those of a competitor when the comparison is referring to actualities that are not similar, relevant or comparable.
Article 164 (Acts of imitation) 
    1) The imitation of products, services, and business initiatives is unrestricted, unless they are protected by an exclusive legally recognized right.

    2) The imitation of the product or service of a third person is considered unfair when it is capable of causing the consumer to associate it with the relevant product or service of a competitor, or when there is a possibility that reputation of others can be exploited or damaged.

    3) If the above associations or exploitations are inevitable the practice is not considered to be unfair.

    4) While not interfering with the previous provision. It is considered unfair and inappropriate, when the imitation of a competitor's product, service and business initiatives is systematic and is intended to directly obstruct the position of the competitor in the market and exceed what, according to the circumstances is considered natural market forces.
Article 165 (Exploitation of the reputation of others) 
    It is considered unfair to inappropriately exploit the reputation of another enterprise for the benefit of themselves or others.
Article 166 (Disclosure of secrets) 
    1) It is considered unfair when industrial or other trade secrets, which have been accessed legitimately, are divulged or exploited without the authorisation of the owner and the recipient is obliged to keep quiet. Or any that have been obtained illegitimately, especially if they are to be used for the conduct mentioned in the following article.

    2) In the context of this article a trade secret is considered to be any technical or commercial information of practical use, that is able to benefit the owner economically, that is not known to the public and all precautions have been taken by the owner to keep it confidential.
Article 167 (Contract violations, benefits and promotions) 
    1) It is considered unfair when staff, suppliers, clients and others are induced to violate the terms of any contract they have with competitors.

    2) To promote the termination of a contract, or, to take advantage of any contractual infringements of the contract, if it is known, for the personal benefit of the signer or others, are considered unfair, when they are used to reveal or exploit trade secrets, or using deception, or with the intention of eliminating a competitor from the market, or any similar practices.
Article 168 (Exploitation of dependents) 
    It is considered unfair if any enterprise inappropriately exploits a dependent, which has economical repercussions on the entrepreneurs that are suppliers or clients that have no alternative means to carry out their business activities.
Article 169 (Sales at a loss) 
    It is considered unfair if any sale is below the manufacturing or purchase price as a strategy to eliminate any market competition.
Article 170 (Unfair competition litigation) 
    Legal action for unfair competition may be taken within a year of the date that the plaintiff discovers or may discover the facts on which the litigation is based but cannot be pursued after three years of the event.
Article 171 (Sentencing) 
    A verdict, which declares that the practice of unfair competition existed, will rule that it is prohibited to continue the unfair practice and determine the appropriate measures to eradicate the effects.
Article 172 (Damages) 
    1) Whether the practice of unfair competition was carried out purposely or accidentally, the accused is liable to pay the plaintiff damages

    2) Once the damages have been set, the verdict it may then be published.
    3) When the existence of unfair competition is proved, guilt is then presumed.


Article 173 (Legitimacy of entities representing groups) 
    When acts of unfair competition damage the interests of a group, legal action for unfair competition can be taken by any entity representing the group.

   For information about registration please consult our To Register section or for answers to your immediate questions, do not hesitate to contact us.