Registration and use

Ownership of marks

Who may apply for registration?

Any private person, legal entity or organisation may apply for registration of trademarks.

However, there are certain limitations for collective marks as well as guarantee and certification marks.

Scope of trademark

What may and may not be protected and registered as a trademark?

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 Directive (EU) 2015/2436. Non-traditional marks such as taste and scent marks are now also registrable pursuant to the Danish Trademarks Act if the applicant can represent such mark clearly and precisely in such way that the subject matter of the protection granted can be determined by the relevant authorities and the public.

Unregistered trademarks

Can trademark rights be established without registration?

Yes. A trademark right can be established without registration based on mere use of the mark in the Danish market.

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

Famous foreign trademarks

Is a famous foreign trademark afforded protection even if not used domestically? If so, must the foreign trademark be famous domestically? What proof is required? What protection is provided?

Yes. Well-known foreign trademarks may be afforded some protection even in cases where they are not used domestically. The proprietor of a well-known trademark may oppose registration of or instigate invalidation proceedings against an identical or similar later trademark if the use of the later trademark without due cause would take unfair advantage of, or be detrimental to, the distinctive character or the reputation of the well-known trademark. This applies irrespective of whether the goods or services, for which the later trademark has been applied or registered for, are identical or similar to those of the earlier well-known trademark.

The benefits of registration

What are the benefits of registration?

Although trademarks established by use are equated with registered trademarks, there are certain benefits of registration, for example:

  • an applied for or registered trademark may be relied upon as a priority in relation to an application for registration of the trademark in another jurisdiction (eg, through the Madrid Protocol or the EU trademark system);
  • the registry database shows how the trademark looks, what type of goods and services it is registered for and the date on which the protection was established. The proprietor can thus immediately document the extent of the trademark right towards third parties and infringers; and
  • further, the proprietor of a registered trademark may prevent a third party from bringing goods into the Danish customs territory (see question 30 for more information about border enforcement against unauthorised goods).
Filing procedure and documentation

What documentation is needed to file a trademark application? What rules govern the representation of the mark in the application? Is electronic filing available? Are trademark searches available or required before filing? If so, what procedures and fees apply?

A trademark application must include the following documentation:

  • a request for registration;
  • the name and address of the applicant (or agent, if applicable);
  • specification of the goods and services;
  • a representation of the mark;
  • a power of attorney (if applicable); and
  • the priority claim (if applicable).

Providing a power of attorney is not required if the agent is an attorney-at-law or a recognised IP adviser (including patent and trademark attorneys).

The representation of the mark in the application must be in a form capable of being reproduced in the trademark database in a way that allows the authorities and the public to determine the clear and precise subject matter of the protection granted to the proprietor. The details depend on the form of the trademark. Marks merely consisting of words or numbers may be represented graphically in writing, whereas an image file must be submitted for marks consisting of graphical devices and three-dimensional shapes. Sound marks must show musical notations and sound sequences, while motion trademarks must show numbered image sequences. In practice, scent and taste marks cannot be sufficiently represented by way of the technical means currently available.

Electronic filing is available.

Trademark searches are not required before filing; however, they are often recommendable. The PT office provides a searchable database on its website, which is available to the public free of charge. More extensive searches can be conducted through private search databases.

As part of the examination procedure, the PT office conducts prior rights searches for information purposes on relative hindrances.

Registration time frame and cost

How long does it typically take, and how much does it typically cost, to obtain a trademark registration? When does registration formally come into effect? What circumstances would increase the estimated time and cost of filing a trademark application and receiving a registration?

The examination time of the PT office for a trademark application is typically between eight to 12 weeks. If no absolute grounds for refusal of registration are found, the trademark will be published in the Danish Trademark Journal. Thereafter, third parties will have two months to oppose the final registration of the trademark.

If an opposition is filed during the two-month opposition period, opposition proceedings will be initiated. Such proceedings take approximately 12 to 18 months.

If the application meets all the requirements and no opposition to the application is filed by third parties, or it is finally decided that the application is sustained despite such opposition, the PT office will register the trademark and publish a notice of the registration in the Danish Trademark Journal. Once the trademark is registered, the protection comes into effect from the date of filing of the application.

In the event an opposition is filed or the application is met with absolute hindrances from the PT office, the estimated time of obtaining trademark registration will increase.

The application fee is 2,000 Danish kroner for one class. The first additional class costs 200 Danish kroner, with any additional classes hereafter costing 600 Danish kroner per class.

Classification system

What classification system is followed, and how does this system differ from the International Classification System as to the goods and services that can be claimed? Are multi-class applications available and what are the estimated cost savings?

Classifications are handled in accordance with the Nice Classification of Goods and Services.

Multi-class applications are available. The application fee is 2,000 Danish kroner for one class. The first additional class will cost 200 Danish kroner, with any additional classes hereafter costing 600 Danish kroner per class. Thus, the cost savings vary depending on the number of classes; for the first additional class the cost savings will be 1,800 Danish kroner and 1,400 Danish kroner for any additional classes hereafter.

Examination procedure

What procedure does the trademark office follow when determining whether to grant a registration? Are applications examined for potential conflicts with other trademarks? Are letters of consent accepted to overcome an objection based on a third-party mark? May applicants respond to rejections by the trademark office?

The examination conducted by the PT office includes the following factors:

  • formal requirements;
  • the classification of goods and services; and
  • whether there are any absolute grounds for refusal.

Applicants are allowed to rectify any deficiencies to the application within two or four months, and it is usually explained in a letter by the PT office what will happen if the applicant fails to remedy the deficiency by the set deadline. Extension of a deadline is normally granted only once, and a request for an extension must be well founded. However, an applicant may be allowed several rounds of written submissions to rectify the application and overcome objections.

If the PT office does not find any absolute grounds for refusal of registration, the trademark will be published in the Danish Trademark Journal. The PT office also checks for relative grounds for refusal and provides the applicant with a search report. However, the report is merely for information purposes as registration is not refused ex officio by the PT office based on relative grounds. The search report provides the applicant with the opportunity to deal with earlier rights found in the report (eg, by requesting a letter of consent to the registration from the holder of an earlier right).

If an application for registration of a trademark has been rejected, the decision may be appealed to the Appeals Board for Patents and Trademarks.

Use of a trademark and registration

Does use of a trademark or service mark have to be claimed before registration is granted or issued? Does proof of use have to be submitted? Are foreign registrations granted any rights of priority? If registration is granted without use, is there a time by which use must begin either to maintain the registration or to defeat a third-party challenge on grounds of non-use?

The applicant neither has to claim use or intent to use of the trademark before registration is granted or issued, nor does the applicant have to submit proof of use in connection with the application process.

A registered trademark that has not been genuinely used in Denmark within five years after the final registration, or where such use has been suspended for five consecutive years, may be challenged and fully or partially revoked, unless the owner presents a valid reason for the non-use. The PT office will not initiate administrative revocation proceedings ex officio. However, if a third party challenges the mark through administrative or court proceedings, the burden of proof will be on the proprietor to document genuine use.

As for registration of trademarks that have acquired distinctiveness through use, the applicant must document the use of the mark, including the extent of such use in respect of time and goods and services as a requirement for registration.

If the proprietor of an unregistered trademark established by use does not continuously use the trademark, the right is forfeited (ie, the five-year rule does not apply to unregistered trademarks).

Applicants may claim priority from an earlier application or registration in another member state of the Paris Convention, World Trademark Organization, European Union or a state that has a bilateral agreement with Denmark. Priority may be claimed only within six months of the application date for the filing of the trademark. The priority application in the foreign country must be the first application of the trademark. When applying for conventional priority, the applicant must state:

  • the priority application date;
  • the priority application number;
  • the priority application country; and
  • which goods in the Danish application are covered by the priority claim.
Markings

What words or symbols can be used to indicate trademark use or registration? Is marking mandatory? What are the benefits of using and the risks of not using such words or symbols?

Two symbols may be used to indicate trademark use or registration; the ™ symbol and the ® symbol. Use of these symbols is not mandatory.

These two symbols have no official meaning in Denmark, but they are commonly known and acknowledged. The two symbols have different meanings. The ™ symbol is an abbreviation for 'Trademark' and may be used for unregistered trademarks. The ® symbol stands for 'Registered Trademark' and should only be used for registered trademarks.

The symbols show that the proprietor considers the relevant trademark as their property and that third parties should refrain from using identical or similar marks. Further, it sends a signal that the proprietor wants to protect the trademark from potential infringers.

Appealing a denied application

Is there an appeal process if the application is denied?

Yes. Rejected applications may be appealed to the Board of Appeals for Patents and Trademarks within two months of the decision. The fee for an appeal is 4,000 Danish kroner. The appeal procedure is conducted in writing. After the appellant has filed the notice of appeal, the Board of Appeal obtains the PT office’s re-assessment on the case. The appellant then has one month to respond by submitting further written comments. In certain cases, an oral hearing of the case may be allowed if requested by the parties. The appeal has suspensive effect.

The decision of the Board of Appeal may be brought before the ordinary courts.

Third-party opposition

Are applications published for opposition? May a third party oppose an application prior to registration, or seek cancellation of a trademark or service mark after registration? What are the primary bases of such challenges, and what are the procedures? May a brand owner oppose a bad-faith application for its mark in a jurisdiction in which it does not have protection? What is the typical range of costs associated with a third-party opposition or cancellation proceeding?

Applications are published for opposition prior to registration. Once the application is published in the Danish Trademark Journal, third parties may oppose the registration within a two-month opposition period.

Registration of a trademark may be opposed on absolute or relative grounds. Opposition on absolute grounds is primarily justified if the sign:

  • cannot constitute a trademark; or
  • lacks distinctive character, ie, consists exclusively of signs which may serve to designate the type, 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;

A third party who owns or holds an earlier trademark may oppose registration on relative grounds. Oppoisition on relative grounds is primarily justified if the sign is:

  • identical to an earlier trademark for identical goods or services;
  • identical or similar to an earlier trademark for identical or similar goods or services if a likelihood of confusion exists, including the likelihood of association between the trademark registration subject to the opposition and the earlier mark; or
  • identical or similar to an earlier trademark that is well known and registration of the mark subject to the opposition would take unfair advantage of or without due cause be detrimental to the distinctive character or reputation of the earlier well-known trademark;

Further, opposition to an application can be made by an owner or holder of an earlier trademark that is valid in another jurisdiction if the mark can be confused with the earlier trademark and if the applicant was in bad faith at the time the application was filed.

After registration, third parties may seek cancellation of the trademark on similar grounds.

Oppositions must be filed with the PT office and must specify the grounds on which it is filed. The applicant will get an opportunity to file a reply to the opposition, after which the PT office will decide if further statements from the parties are needed. The number of statements may differ depending on the complexity of the matter.

In case of opposition, the PT office may decide to uphold the appliciation in its entirety or reject the application in whole or in part.

The opposition fee is 2,500 Danish kroner.

Duration and maintenance of registration

How long does a registration remain in effect and what is required to maintain a registration? Is use of the trademark required for its maintenance? If so, what proof of use is required?

The term of protection is 10 years from the date of application. A registration may be renewed for further 10-year periods from the expiry of the registration period. The renewal becomes effective when the renewal fee is paid. The fee may be paid from six months before the expiry date and until six months after the expiry date (grace period against an increased fee).

Use of the trademark is not required for its maintenance. However, a registered trademark that has not been genuinely used in Denmark within five consecutive years after the final registration or where such use has been suspended for five consecutive years may be challenged by any third party and fully or partially revoked, unless the owner presents a valid reason for the non-use. The PT office will not initiate administrative revocation proceedings ex officio. If a third party challenges the mark through administrative or court proceedings, the burden of proof will be on the proprietor to document genuine use.

Documentation of genuine use must establish the time, place, extent and nature of the use of the trademark for the goods or services for which it is registered.

If the proprietor of an unregistered trademark established by use does not continuously use the trademark, the right is forfeited.

Surrender

What is the procedure for surrendering a trademark registration?

A proprietor may surrender a trademark registration at any time, wholly or in part, by written request to the PT office.

Related IP rights

Can trademarks be protected under other IP rights (eg, copyright, designs)?

In theory, trademarks may also be protected under the Copyright Act or the Design Protection Act if the trademark fulfils the requirements for such protection. However, case law from the Maritime and Commercial High Court suggests that trademarks being used as such are not protected under copyright law in addition to the trademark protection, unless they are very aesthetic and original.

Trademarks online and domain names

What regime governs the protection of trademarks online and domain names?

The Trademarks Act protects the proprietor against infringement regardless of whether the infringing acts are conducted offline or online.

A proprietor may use its trademark as a domain name, and it will thus enjoy the same protection as any other trademark.

The mere registration of a domain name with a domain name registrar does not grant the registrant a trademark right to the domain name (if such a right does not exist in the first place). The registration of a domain name entails that the owner obtains an exclusive right to use the domain address, but this right alone does not prohibit others from using the name for a business or product. However, a domain name owner may also register its domain name as a trademark if it meets the general requirements for trademark protection.

The Domain Names Act regulates the registration and use of domain names under the Danish .dk domain.