I. UNFAIR COMPETITION We mentioned in the introduction to this text that acts of competition, understood as those aimed at obtaining or developing one’s own clientele, are, in principle, lawful and beneficial in the construction of an open competitive market. Even when aimed at attracting customers from a competitor, provided that the principles of fair competition are respected. As Couto Gonçalves points out, the concept of “unfair competition, by definition, does not call competition into question, but rather presupposes it; its purpose is not to repress the end, but rather the means employed.”6. The legal concept of unfair competition is thus part of the protection of the purposes enshrined in Article 1 of the Portuguese Industrial Property Code7 (CPI), prohibiting acts contrary to this fair competition. In Portugal, unfair competition, as an administrative offense mechanism for protecting fair competition, is generally governed by Article 311 of the CPI, which classifies as acts of unfair competition, and therefore unlawful, “any act of competition contrary to the honest rules and practices of any branch of economic activity.” This definition implies, first and foremost, that unfair competition is an open category that encompasses an indeterminate number of behaviors that may affect fair competition in the market. The same Article 311 of the CPI lists some types of conduct that exemplify acts of unfair competition, but without being exhaustive. Legal doctrine has classified the different acts of unfair competition into several categories. Five categories are usually referred to: acts of confusion8, acts of discrediting9, 6 GONÇALVES, Manual de Direito Industrial, p. 26. 7 Approved by Decree-Law No. 110/2018, published in the Official Gazette of the Portuguese Republic on December 10. 8 Acts of confusion were characterized as those that are likely to create confusion with the establishment, products, or services of competitors, regardless of the means employed. It has been emphasized that this category of acts requires only the likelihood of confusion (the risk) and not actual confusion. In other words, it is not necessary for confusion to occur among consumers, but rather that the act be capable of creating confusion. In this regard, see OLAVO, Carlos, Propriedade Industrial - Volume I, [s.l.]: Almedina, 2005, p. 273–276; GONÇALVES, Manual de Direito Industrial, p. 413 ss. 9 Acts of discrediting were characterized as acts of competition consisting of “false statements made in the course of economic activity, with the aim of discrediting competitors.” Despite the final part of the aforementioned regulation, José Mota Maia believes that “these false statements constitute acts of discrediting,” and therefore it is not necessary for the perpetrator to have the intention of harming the competitor. [MAIA, José Mota, Propriedade Industrial - Volume II - Código da Propriedade Industria, [s.l.]: Almedina, 2005, p. 564 e 565.]. Once again, it is understood that it is sufficient for the production of these false statements to be a suitable means of discrediting the competitor for the specific purpose provided for in the regulation to be presumed. This dispenses with the need for specific intent on the part of the agent. On this point, see. OLAVO, Propriedade Industrial - Volume I, p. 276–278; GONÇALVES, Manual de Direito Industrial, p. 417 a 418. 571 FAIR COMPETITION IN THE RANKING OF COMMERCIAL ESTABLISHMENTS
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