Rights and protection

Ownership

Is ownership of a trademark in your jurisdiction determined on a first-to-file or first-to-use basis?

Ownership of a trademark is determined on a first-to-use basis. 

Unregistered trademarks

What legal protections are available to unregistered trademarks?

The legal protection of unregistered trademarks is equal to the protection of registered trademarks.

Further, owners of unregistered trademarks may oppose the registration of trademarks that are identical or confusingly similar, provided that the unregistered mark is used in the course of trade in Denmark before the application for registration of the later mark is filed.

How are rights in unregistered marks established?

In accordance with the Trademarks Act, unregistered trademarks enjoy protection from the commencement of use in Denmark for the goods or services for which the trademark is used. Use must be more than just local.

Are any special rights and protections afforded to owners of well-known and famous marks?

Owners of well-known and famous trademarks are afforded a broader scope of protection in relation to the similarity of the goods or services. The owner of a well-known trademark may also prohibit the use of the mark in relation to goods or services which are not identical or similar if such use will take unfair advantage of or be detrimental to the trademark’s distinctive character or reputation. 

To what extent are foreign trademark registrations recognised in your jurisdiction?

Foreign trademark applications or registrations made in another Paris Convention member state may be used as a basis for claiming priority in Denmark.

Foreign trademarks are also recognised in relation to bad-faith applications. Accordingly, a trademark is precluded from registration if it is identical to or only insignificantly distinct from a trademark which, on the date of filing the application or, where appropriate, the date of the priority claimed in respect of the application, has commenced to be used abroad and is still in use there for goods or services which are identical or similar to those in respect of which registration of the later trademark is applied for, and on the date of filing the applicant had or should have had knowledge of the foreign trademark.

Registered trademarks

What legal rights and protections are accorded to registered trademarks?

Trademark registration gives the trademark owner the exclusive right to use the trademark in the course of trade for the goods and services for which the trademark is registered and to prohibit third parties from using an:

  • identical sign for identical goods or services; 
  • identical or similar sign for identical or similar goods and services if there is likelihood of confusion; or
  • identical or similar sign irrespective of whether it is used in relation to identical or similar goods or services which are identical with, similar to, or not similar to, those for which the trademark is registered when the trademark is well known and the use of the sign takes unfair advantage of or is detrimental to the trademark’s distinctive character or reputation.

The trademark owner may file oppositions or requests for cancellation and revocation against younger marks if the younger mark violates the trademark owner's rights.

Who may register trademarks?

Any private person, legal entity or organisation may register trademarks. However, there are some limitations for collective marks as well as guarantee and certification marks:

  • Guarantee and certification marks are registrable by legal entities such as public authorities, foundations, associations, companies and other organisations, provided that such person does not carry on a business involving the supply of goods or services of the kind guaranteed or certified.
  • Collective marks are registrable by associations and organisations whose members are businesses. The association or organisation concerned must be able to (in its own name):
  • have rights and obligations;
  • enter into contracts or other legal acts; and
  • act as party in a lawsuit.

What marks are registrable (including any non-traditional marks)?

Any sign that meets the minimum requirements of distinctiveness and is capable of being reproduced clearly and precisely can be registered as a trademark, including:

  • words and word combinations, including slogans, personal names, company names and names of buildings;
  • letters and numerals;
  • pictures and designs;
  • the shape, equipment or packaging of the goods;
  • sounds; and
  • movements.

The previous graphical representation requirement was lowered with the implementation of the EU Trademark Directive (2015/2436/EC). Non-traditional marks such as taste and scent marks are now also registrable if the applicant can represent such marks clearly and precisely in such a way that the subject matter of the protection granted to the proprietor can be determined by the relevant authorities and the public. However, according to Patent and Trademark Office practice, the technology does not yet provide a method that allows the reproduction of a scent or taste mark clearly and precisely, and thus it is not possible to register them.

Can a mark acquire distinctiveness through use?

Yes.

On what grounds will a mark be refused registration (ie, absolute and relative grounds)?

The Patent and Trademark Office will refuse a mark ex officio only on absolute grounds. The absolute grounds for refusal include:

  • if the mark is shaped into a sign which cannot constitute a trademark;
  • if the mark lacks distinctive character;
  • if the mark consists exclusively of signs or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, value or geographical origin of the goods or services, the time of production of the goods or of rendering the services or other characteristics of the goods or services;
  • if the mark consists exclusively of signs or indications which are customary in the current language or established practices of trade to designate the goods or services;
  • if the mark consists exclusively of:
  • a shape or other characteristic resulting from the nature of the product;
  • a shape or other characteristic of the product which is necessary to obtain a technical result; or
  • a shape or other characteristic which adds substantial value to the product.
  • if the mark violates the law, public order or morality;
  • if the mark is of such a nature as to deceive the public (eg, as to the nature, quality or geographical origin of the goods or services); 
  • if the mark has not been authorised by the competent authorities in accordance with the Paris Convention or includes badges, emblems or escutcheons of public interest, unless the appropriate authority has given its consent to their registration.
  • if the mark is banned from registration as a trademark pursuant to applicable law or international agreements to which the European Union or Denmark are parties and that provide protection for designations of origin and geographical indications;
  • if the mark is precluded for registration as a trademark pursuant to applicable law or international agreements to which the European Union is party and which provide protection to traditional appellations for wine;
  • if the mark is precluded from registration as a trademark pursuant to applicable law or international agreements to which the European Union is party and which provide protection of guaranteed traditional specialities; or
  • if the mark consists of, or reproduces in its essential elements, an earlier plant variety denomination protected by plant variety rights and relates to plant varieties of the same or closely related species.

A mark will not be refused ex officio on relative grounds for refusal (ie, prior third-party rights). The Patent and Trademark Office may refuse a mark only upon opposition of a third party on relative grounds. The relative grounds for refusal include:

  • if the trademark is identical to an earlier trademark and the goods or services for which the trademark is applied are identical to the goods and services for which the earlier trademark is protected;
  • if there exists a likelihood of confusion on the part of the public because the mark is identical or similar to an earlier trademark and the goods or services covered by the trademark are identical or similar;
  • if the mark is identical or similar to an earlier trademark irrespective of whether the goods or services for which it is applied are identical, similar or not similar to those for which the earlier trademark is registered, where the earlier trademark has a reputation in Denmark in respect of which registration is applied for or, in the case of an EU trademark, has a reputation in the European Union and the use of the later trademark without due cause would take unfair advantage of or be detrimental to the distinctive character or the repute of the earlier trademark; or
  • an agent or representative of the proprietor of the trademark applies to register the trademark in its own name without the proprietor's consent, unless the agent or representative justifies its actions.

Are collective and certification marks registrable? If so, under what conditions?

Yes, collective marks and guarantee and certification marks are registrable. The conditions for registering collective and certification marks are similar to the registration requirements for ordinary trademarks. However, some special conditions apply for collective marks:

  • The regulations governing the use of the mark must be submitted.
  • The regulations governing the use of the mark must specify at least:
  • the persons authorised to use the collective mark;
  • the conditions for membership of the organisation or association concerned; and
  • the conditions for the use of the mark, including penalties.
  • The regulation governing the use of the mark must authorise any person whose goods or services originate in the geographical area concerned to become a member of the association concerned, provided that they fulfil all of the other conditions of the regulations.