New Danish Design Tribunal: Disputes on architecture, design and handicraft can now be filed

The long-awaited Danish Design Tribunal has finally begun its work. In 2020, the first steps towards the creation of the Design Tribunal, a tribunal for disputes and questions regarding architecture, design, and handicraft was taken.

In November 2020, we wrote about the upcoming tribunal. You can read our article here. In the following, we provide an update on everything you need to know about the newly launched Design Tribunal.

Two branches

The prospect of long-drawn-out cases in situations of potential design infringements could potentially restrain artist and designers from protecting their IP rights in regular courts. The desire to combat this risk was one of the motives behind the Design Tribunal, which has now opened its doors to its first cases. The aim is thus that the Design Tribunal will, in a simple and easy manner, handle disputes regarding infringements of architectural designs, arts and crafts, and designs in general.

Alongside the Tribunal, an Expert Opinion Committee (in Danish: Responsumudvalg) has been launched. The purpose of the Committee is to deliver statements on the legal protection of architecture, design, and handicrafts. The Tribunal and the Committee will collectively be named The Council for the Legal Protection of Architecture, Design, and Handicrafts (in Danish: Nævnet for Retsbeskyttelse af arkitektur, design og kunsthåndværk).

The Council is run by the Danish Crafts & Design Association (DKoD). Supporting the initiative is, among others, the Confederation of Danish Industry (DI) and The Danish Chamber of Commerce (Dansk Erhverv) as well as other non-governmental organisations.

The Design Tribunal

Which cases can be submitted to the Tribunal?

The Design Tribunal will try cases between two or more parties related to potential infringements of design, architecture, and handicrafts. Disputes regarding trademarks, patents, and utility models are outside the scope of the Tribunal. The Tribunal will also be available for assessing infringements of the Danish Marketing Practices Act.

It is worth noting that unless it is agreed between parties to a case at the Design Tribunal, the statute of limitations is not automatically suspended.

Which legal value does a ruling from the Tribunal have?

As a general rule, rulings from the Design Tribunal are not legally binding.

However, as the Tribunal consists of highly regarded experts in the field of intellectual property rights, it is expected that rulings from the Tribunal will be recognised in a matter which could lead to fewer cases at the general courts. Furthermore, it is the intention that a decision from the Tribunal can clarify whether there are grounds for filing a case at the general courts or perhaps help the parties reach a settlement.

The Tribunal can only provide statements on whether design, architecture, or handicraft is protected under intellectual property laws and, if so, whether such design, piece of architecture, or handicraft is infringed or not. The Tribunal cannot, however, assign damages to the infringed party unless the parties have agreed that the Tribunal is to function as a court of arbitration.

The Tribunal as a court of arbitration

If the parties agree thereto, the Tribunal can function as a court of arbitration. In that case, the rulings of the Tribunal will be legally enforceable under the Danish Arbitration Act. Further, the Tribunal can then give rulings on matters outside its traditional scope, i.e. non- intellectual property related issues, as well as assign damages to an infringed party.

Members of the Tribunal

The Tribunal consists of members who are all recognised as leading experts in the field of intellectual property, architecture, design, and handicrafts. The president of the Tribunal is a High Court judge, while the vice-president is a city court judge. Depending on the matter in question, the Tribunal can be supplemented with additional members.

Costs and legal counsel

The cost of filing a case with the Design Tribunal is DKK 3,750 (excl. VAT). If the Tribunal functions as an arbitration court, an additional fee decided by the president of the Tribunal must be paid.

If the case is not settled by the parties during the preparation of the case, thereby requiring a ruling from the Tribunal, the additional fee is DKK 21,250 (excl. VAT). The total fee for a ruling from the Tribunal is thus DKK 25,000 (excl. VAT), with the possibility of a higher fee due to extraordinary circumstances.

It is the intention that a party can submit a case to the Design Tribunal without any legal counsel. However, it is possible to be represented by an attorney. Cases can be filed via the Tribunal’s website by using a detailed but simple form which contains the information necessary to assess the case in question.

Parties can thus expect significantly lower costs for filing a case with the Tribunal compared to o those for filing a case with the ordinary Danish courts. The Tribunal expects a processing time of maximum 6 months, however, depending on the complexity of the case in question as well as the general case load of the Tribunal.

The Expert Opinion Committee

Which cases can be tried before the Expert Opinion Committee?

The purpose of the Expert Opinion Committee is to give unitary statements in cases to determine whether a specific piece of design, architecture, or handicraft is protected under the Danish Copyright and/or Design Act. Furthermore, designers, architects, and the like can ask the Committee to provide an evaluation on the range of protection before the launch of a new product.

A statement of the Expert Opinion Committee is not legally binding but as is the case with the Tribunal, it is expected that an opinion from the Committee will function as a relevant indication for parties to avoid or at least assess the need for additional legal steps.

The Expert Opinion Committee will not take on disputes concerning infringements, but may, however, deliver guidance opinions to Danish courts and courts of arbitration in ongoing disputes if such opinion is is ordered by the court or agreed to by the parties. The Expert Opinion Committee can not deliver expert opinions concerning ongoing cases before the Design Tribunal.

The Expert Opinion Committee expects a processing time of maximum 6 months, which may vary depending on the complexity of the case and the general case load of the Committee.

Members of the Expert Opinion Committee

Members of the Expert Opinion Committee comprise of a range of leading Danish experts in the field of intellectual property rights, architecture, and handicrafts.

What does it cost?

A legal opinion from the Expert Opinion Committee costs DKK 12,500 (excl. VAT).