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The Portuguese Case “Os Belenenses”

The World IP Day´s theme this year, which celebrates the “Reach for Gold: IP and Sports”, curiously coincides with the recent legal case that occurred in the Portuguese courts, related to the historical sports club “Os Belenenses” – best known for its football team from Lisbon – a case which involves both club passion and intellectual property rights.

Taking into account the entrepreneurial dimension of sport, aiming to improve the financial management and transparency in sports clubs, a new special type of limited company was introduced in the early 1990s (known in Portugal by the acronym SAD). The Sports Club “Os Belenenses” was not exception, creating their own SAD in 1999. It turns out that, in 2012, 51% of the SAD´s shares were sold to an investor, the Codecity. In that opportunity, a shareholder agreement and a protocol which regulated the relationship between the club and the sport limited society were concluded. The protocol expressly provided the use of assets which were exclusive property of the club, such as trademarks, emblem, anthem, among others.

On July 30th, 2018, the aforementioned protocol came to an end, ceasing all the existing contractual relationship between the sports club and its SAD. However, the sport society has unduly continued to use the anthem, trademarks and the symbol of “Os Belenenses”. Because of this, the Sports Team “Os Belenenses” moved a legal action against its SAD before the Intellectual Property Court in Lisbon, claiming to the court to prevent the SAD from using any intellectual property assets of the club. On October 19th, 2018, the Intellectual Property Court deferred all the claims, ordering the cease of use of any intellectual property right of the club, which included the trademark, symbols and anthem.

It is undeniable that this case is really “sui generis”. Not only because places face-to-face club and its SAD – created by the first one – but also because these events led to the Sports Club “Os Belenenses” to create a new football team, which, despite retaining all the club’s immaterial assets (including intellectual property rights), started a “new life” in the Portuguese’s lowest-level football league competition. On the other hand, surprisingly, “Belenenses SAD” has maintained its society name and the team in the Portuguese premier league and, prevented from using any symbol of the club, as well as claiming any previous trophies, ended up registering a trademark which started using in the premier league matches. It remains to be seen, after all, which club the fans will support.

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Author : Rafaela Schneider Fossati Fidalgo

Rafaela Schneider Fossati Fidalgo is lawyer in Brazil and Portugal, specialized in Civil Procedure and Intellectual Property, and legal analyst at Darts IP. She is studying a master degree in IP at the University of Lisbon – faculty of law.

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