Trademarks

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

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.

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.

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.

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.

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.

The Danish Patent and Trademark Office (DKPTO).

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.

Yes.

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.

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.

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.

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

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.

No.

Yes.

No.

Usually, approximately two months.

Approximately three to four months.

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.

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.

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

Yes.

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

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

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

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.

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.

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

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.

No.

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.

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

No.

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.

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.

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.

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.

Renewal is subject only to payment of a renewal fee.

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.

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

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.

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.

No.

No.

No.

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.

Yes.