Denmark: Trademarks Comparative Guide

Last Updated: 9 April 2019
Article by Christina Type Jardorf
Do you want to compare other jurisdictions?... Click here

1 Legal framework

1.1 What is the statutory or other source of trademark rights?

The primary source is the Danish Trademark Act and the EU Trademark Regulation.

1.2 How do trademark rights arise (ie, through use or registration)?

In Denmark, trademark rights may be acquired both through use and through registration. In case of establishing trademark rights through use, such use must be beyond mere local use.

1.3 What is the statutory or other source of the trademark registration scheme?

The Danish Trademark Act is the primary source of the registration scheme, as well as EU directives. Further, the official guidelines from the Danish Patent and Trademark Office apply.

2 What constitutes a trademark?

2.1 What types of designations or other identifiers may serve as trademarks under the law?

A registered trademark may consist of any character – in particular, words, including personal names, or images, letters, numbers, colours, the shape of a product or its packaging, sounds, motion, patterns and similar.

2.2 What are the requirements for a designation or other identifier to function as a trademark?

A relevant designation or other identifier will be capable of functioning as a trademark as long as it is suitable to distinguish the holder's goods or services from those of others, and can be reproduced in the Trademark Register in a way that enables the competent authorities and the public to determine the scope of trademark protection.

2.3 What types of designations or other identifiers are ineligible to function as trademarks?

There are no standard designations or other identifiers which per se are considered as ineligible to function as trademarks. Accordingly, assessment shall be made on a case-by-case basis to check whether a given designation or other identifier fulfils the abovementioned criteria to function as a trademark.

3 Registration procedure

3.1 Which governing body (ie, trademark office) controls the registration process?

The Danish Patent and Trademark Office (DKPTO).

3.2 What fees does the trademark office charge for an application, during prosecution and for issuance of a registration?

The official trademark application fee is DKK2,000 for one class and DKK2,200 for two classes. Each additional class is subject to an additional fee of DKK600 per class. There are no additional mandatory fees during prosecution or upon issuance of a registration certificate; however, an applicant may pay DKK700 in order to receive a reasoned search report from the DKPTO.

3.3 Does the trademark office use the Nice Classification scheme?

Yes.

3.4 Are ‘class-wide' applications allowed, or must the applicant identify the specific goods or services for which the mark will be used?

Protection is obtained for those goods and/or services indicated in the list of goods and services. Accordingly, it is necessary to identify the specific goods or services for which the mark will be used.

3.5 Must an applicant have a bona fide intention to use the trademark for the goods or services identified in the application in order to apply for registration?

No documentation of such intention is required; therefore, it is possible to file a trademark application without a bona fide intention to use the trademark.

3.6 Does the trademark office perform relative examination of trademark applications (ie, searches for earlier conflicting marks)?

Yes, and search results are provided to the applicant for information purposes. However, trademarks are not ex officio refused registration by the DKPTO on relative grounds.

3.7 What types of examinations does the trademark office perform other than relative examination?

In addition to checking the formal requirements relating to a trademark application, the DKPTO will examine the application on absolute grounds.

3.8 Apart from confusion with a senior mark, descriptiveness and genericness, are there other grounds under which a mark is ineligible for registration, such as public policy reasons?

Yes. The DKPTO also examines whether the mark:

  • is deceptive;
  • violates other laws, public order or morals;
  • includes a coat of arms or a national flag; or
  • is protected as a geographical indication.

3.9 Is there a separate or supplemental register on which descriptive marks may be registered?

No.

3.10 Can a third party object to registration of a mark before the application has been published (eg, by letter of protest to the trademark office)?

Yes.

3.11 Must the applicant use the trademark commercially in order to obtain a registration?

No.

3.12 How much time does it typically take from filing an application to the first office action?

Usually, approximately two months.

3.13 How much time does it typically take from filing an application to publication?

Approximately three to four months.

4 Appeals

4.1 If the trademark office refuses registration, can the applicant appeal? If so, to what body and by what procedure?

A registration refusal by the Danish Patent and Trademark Office (DKPTO) may be appealed to the Danish Board of Appeal for Patents and Trademarks within two months of the refusal date.

4.2 What is the procedure for appealing a trademark office refusal?

Upon receiving notice of appeal, the Board of Appeal will obtain the DKPTO's reassessment of the case. The appellant is then given one month to respond to any such comments from the DKPTO. Usually, the appeal procedure is conducted in writing. In certain cases, an oral hearing may be allowed, if requested by the parties. The appeal has suspensive effect.

4.3 Can the reviewing body's decision be appealed? If so, to what body and by what procedure?

Yes, decisions of the Board of Appeal can be challenged before the ordinary courts.

5 Oppositions

5.1 Can a third party oppose a trademark application?

Yes.

5.2 Who has standing to oppose a trademark application?

Any natural or legal person that claims its IP rights are infringed by a trademark application may file a notice of opposition.

5.3 What is the timeframe for opposing a trademark application?

A trademark application is subject to opposition for a period of two months from publication in the Trademark Journal.

5.4 Which body hears oppositions?

Trademark opposition matters are handled by the Danish Patent and Trademark Office (DKPTO).

5.5 What is the process by which an opposition proceeds?

An opposition notice must be submitted to the DKPTO in writing within the abovementioned timeframe, together with relevant grounds and payment of the applicable official fee.

Upon receipt of the opposition notice, the DKPTO will set a deadline for the trademark owner's response. After receipt of the same, the DKPTO will decide whether the argumentation and documentation provided are sufficient to render a decision. In complex cases, the parties may be allowed to file additional statements to explain the facts of the case and document their claims.

The DKPTO renders its decision once both parties have had the opportunity to submit their arguments and documentation.

5.6 Can the decision on the opposition be appealed? If so, to what body and by what procedure?

Decisions of the DKPTO can be appealed in writing to the Board of Appeal for Patents and Trademarks within two months of the decision date. An appeal is subject to payment of the applicable official fee. Each party submits one pleading, after which the Board of Appeal obtains the DKPTO's reassessment of the case. The parties then have one month to respond by submitting further written comments. As a main rule, the proceedings are conducted in writing; however, in certain cases an oral hearing may be allowed, if requested by the parties.

6 Rights of registered and unregistered marks

6.1 What, if any, protection is afforded to unregistered trademarks?

Unregistered trademarks enjoy the same level of protection as registered trademarks, provided that establishment of trademark rights can be documented by the trademark owner.

6.2 What legal rights are conferred by a trademark registration?

Trademark registration does not provide the trademark owner with any additional legal rights compared to those related to unregistered marks. However, registration of a trademark makes it easier to indicate the time of establishment of trademark right and may provide for a broader scope of protection, depending on the actual list of goods or services – especially if the trademark registration is not yet subject to a use requirement. In case of an unregistered trademark, the scope of protection is limited to the specific goods or services for which the trademark is used.

6.3 If there is a separate register for descriptive marks, what legal rights are conferred by registration therein?

No.

7 Enforcement and remedies for trademark infringement

7.1 What remedies are available against trademark infringement?

The trademark owner may claim:

  • reasonable compensation for the unauthorised use of its trademark and compensation for any additional damages caused by the infringement, provided that the infringement was committed with negligence or intent;
  • discretionary compensation for market distortion;
  • recall and/or destruction of infringing products;
  • an order for the infringer to cease the infringing use;
  • disclosure of information about the infringing use, including the scope of the same;
  • cancellation or revocation of the infringing trademark registration; and
  • publication of the court judgment.

7.2 What remedies are available against trademark dilution?

The trademark owner may claim the same remedies for trademark dilution as for trademark infringement (as above).

7.3 Does the law recognise remedies against other harms to trademark rights besides infringement and dilution?

No.

7.4 What is the procedure for pursuing claims for trademark infringement?

A trademark owner has several options when enforcing its trademarks rights:

  • It may pursue an administrative claim before the Danish Patent and Trademark Office (DKPTO) for infringing trademark applications or registrations (ie, opposition, cancellation and revocation procedures.
  • It may pursue a civil claim against the infringing party before the competent court. This option may variously include:
    • a request to secure evidence at the infringer's premises;
    • a request for a preliminary injunction to prohibit the infringing use and seizure of the infringing goods; and
    • ordinary court proceedings.
  • The first and second options above are preliminary actions and require subsequent initiation of legal proceedings on the merits, unless the matter is settled between the parties beforehand. All three options require submission of a written request followed by relevant arguments and documentation, along with payment of the court fee. Both parties are given the opportunity to submit their arguments and documentation before the court renders a decision.
  • It may pursue a claim under criminal proceedings, initiated by the relevant prosecuting authority. The trademark owner is given the opportunity to submit its argumentation and a request for damages; however, it is not considered a party to the criminal proceedings and has limited opportunity to affect the course of the case.

7.5 What typical defences are available to a defendant in trademark litigation?

The following defences are available to a defendant:

  • There is no likelihood of confusion between the respective trademarks or designations;
  • The relevant trademark has not been used commercially;
  • The relevant trademark has been used by the defendant in accordance with honest business practices – for instance, the right to use its own name and address, or where use of the trademark is necessary for the intended purpose of the goods (spare parts);
  • The trademarks or designations in question can coexist under the Trademarks Act;
  • The contested trademark or designation was used before the plaintiff acquired its trademark rights; or
  • The plaintiff's trademark is invalid, or should be cancelled or revoked.

7.6 What is the procedure for appealing a decision in trademark litigation?

Decisions of the DKPTO may be appealed to the Board of Appeal for Patents and Trademarks, while decisions of the latter can be appealed to a competent first-instance court.

Decisions of a first-instance court may be appealed to the high courts. A third-instance appeal to the Supreme Court usually requires permission from the Appeals Permission Board. In certain cases – for instance, if the case is potentially precedent setting or gives rise to an issue of general public importance – a decision issued by the Maritime and Commercial High Court, which is a specialised IP court, may be appealed directly to the Supreme Court. An appeal is subject to a deadline of four weeks from the date of the relevant decision.

8 Maintenance and removal of registrations

8.1 What is the length of the initial term of registration and what is the length of renewal terms?

The term of protection is 10 years from the date of application. A trademark registration may be renewed for further 10-year periods from the expiry of the registration period.

8.2 What, if anything, must be submitted to the trademark office to maintain or renew a registration?

Renewal is subject only to payment of a renewal fee.

8.3 What are the grounds for cancelling a trademark registration?

A trademark registration may be cancelled due to non-use or revoked if it was registered contrary to the Trademark Act. Revocation may be based on any of the absolute or relative grounds for refusal, including the following:

  • The trademark infringes third-party rights;
  • The trademark has become a common name in the trade as regards the goods or services for which it has been registered; or
  • The trademark is or has become misleading to the public, particularly as to the nature, quality or geographical origin of the goods or services.

8.4 Under what circumstances may the trademark office cancel a registration on its own initiative?

The Danish Patent and Trademark Office (DKPTO) may initiate revocation proceedings before the competent court only in case of absolute hindrances.

8.5 What is the procedure by which a third party may seek cancellation of a trademark registration?

Any natural or legal person may file a request for cancellation or revocation with the DKPTO. Legal revocation or cancellation proceedings before a competent court can be initiated only by a natural or legal person with a sufficient interest in the matter.

A revocation or cancellation request must be submitted to the competent authority (the court or the DKPTO) in writing by providing relevant grounds for such request and payment of the applicable official fee.

Upon receipt of such request, the competent authority will set a deadline for receipt of the trademark owner's response to the revocation pleading. Depending on the complexity of the cases, the parties may be allowed to file several statements to explain the facts and document their claims. The competent authority will render a decision when both parties have had a chance to submit their arguments at least once.

8.6 What is the procedure for appealing a decision cancelling a registration?

A revocation or cancellation decision of the DKPTO may be appealed in writing to the Board of Appeal for Patents and Trademarks within two months of the decision date. Decisions of a competent court follow the regular procedure for court appeals – that is, as a main rule, within four weeks of the decision date.

9 Licensing

9.1 Are there particular requirements, such as quality control by the licensor, for a trademark licence to be valid?

No.

9.2 Must trademark licences be recorded with the trademark office or other governing body?

No.

9.3 Can a licensor lose its rights in a trademark by failing to comply with its obligations under the licence, such as maintaining quality control?

No.

10 Protection of foreign trademarks

10.1 Under what circumstances may foreign trademarks not registered in the jurisdiction be enforced (eg, under unfair competition law)?

Foreign trademarks may be enforced in case of bad-faith applications in accordance with the Trademark Act and the Paris Convention. In certain cases, foreign trademarks may also be enforced under the Danish Marketing Practices Act, provided that the claimed infringement violates good business practice.

10.2 Does the trademark office permit registration of a mark based on a foreign or international (Madrid) registration?

Yes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Moalem Weitemeyer Bendtsen Advokatpartnerselskab
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Moalem Weitemeyer Bendtsen Advokatpartnerselskab
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions