and Article 23 of the EUDD, that revoked the first one, is also substantially similar.33 The Portuguese Industrial Property Code34 (CPI) addresses the protection of design in Article 173 and ff. The Portuguese Copyright Code (CDADC)35 addresses the protection of this subject matter by copyright. The exterior appearance of a product may be protected as exclusive industrial property right and as copyrighted work. The requirements of both protections are different. In certain situations, there may be a cumulation of protections, as stated under Articles 194 CPI, 96 (2) 6/2006, first version, and current version as amended by EUDR, and 2 (1) (i) CDADC. The cumulation of protections was imposed by article 17 of Directive 98/71 (DD), but each Member State might seemingly determine the conditions of protection, including the degree of “originality”, as stated in the second sentence of this provision. The Portuguese legislator did not define the concept of “originality”, leaving that matter to be addressed by legal scholarship and case law. The legislator transcribed the wording of the first part of Article 17 of the CDD36 ignoring the invitation of the second part of the same provision. Article 194 CPI (that repeats Article 200 CPI 2003) titled “Relationship with copyright” states that “any registered design shall also be eligible for protection under copyright law as from the date when the design was created, or defined, in any form”. The inertia of the national legislature led to doubts on the meaning and scope of article 194 CPI regarding the requirements for cumulation of protections. Because of the wording of Article 194 (and before that, of art 200 CPI 2003), which only refers to “registered design”, doubts on whether unregistered design could benefit from cumulation of protections were also raised. Nevertheless, if the EU law protects unregistered design, it also applies for copyright protection.37 33 Article 23 of EUDD, headed “Relationship to copyright”, determines that “A design protected by a design right registered in or in respect of a Member State in accordance with this Directive shall also be eligible for protection by copyright as from the date on which the design was created or fixed in any form provided that the requirements of copyright law are met”. 34 Código da Propriedade Industrial 2018 (DL nº 2018/110, of December 10th). 35 Código do Direito de Autor e dos Direitos Conexos 1985 (DL nº85/63, of March 14th). 36 Article 17 of Directive 98/7 headed ‘Relationship to copyright’ states: “A design protected by a design right registered in or in respect of a Member State in accordance with this Directive shall also be eligible for protection under the law of copyright of that State as from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State.” 37 In the judgment of the Court of Appeal of Guimarães of 27 February 2012, Case JM Carvalho Araújo v Bruma (Proc 1607/103TBBRG), when the 2003 CPI was in force, and the provision concerning cumulation 234 MARIA VICTÓRIA ROCHA
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