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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 or from using an identical or similar sign for identical or similar goods and services if there is likelihood of confusion.

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.

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

Any sign that meets the minimum requirements of distinctiveness and is capable of being represented graphically 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; and
  • the shape, equipment or packaging of the goods.

Non-traditional marks such as sound, taste and scent marks are also registrable if the applicant can represent such a mark graphically. The graphical representation requirement relating to this type of trademark was lowered by EU Directive 2015/2436. It is now sufficient if the representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective. With the upcoming implementation of the directive, it will become easier to protect non-traditional trademarks. The implementation deadline is January 14 2019.

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 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 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); or
  • 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.

A mark will not be refused ex officio on relevant grounds for refusal (ie, prior third-party rights). 

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

Yes, pursuant to the Collective Marks Act, collective and certification marks are registrable. Collective marks are registrable by associations and organisations whose members are businesses. Certification marks are registrable by legal entities such as public authorities, foundations, associations, companies and other organisations which establish conditions for and exercise control of goods or services.

With a few exceptions, the conditions for registration of collective and certification marks are very similar to the registration requirements for ordinary trademarks. Marks that designate the geographical origin of goods or services may be registered as collective or certification marks, even if they would normally be considered to lack distinctive character. Further, an application for registration of a collective or certification mark must also contain details of the regulations which govern the use of the mark.

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