Intellectual propertyi Brand search
To a large extent the Trademarks Act has been harmonised with the EU Trademark Directive, but there are still differences. The most notable difference is that a Danish trademark can be acquired through use. Further, the Trademarks Act is to some extent supplemented by the Marketing Practices Act, which is a statutory law of unfair competition.
Protected registered trademarks can be searched on https://euipo.europa.eu/eSearch/#advanced (EU trademarks) and www.dkpto.dk (Danish trademarks). These websites can also be used for searching EU- and Danish-registered design rights. Unregistered Danish trademarks would have to be found through general knowledge of the market and internet searches.
Copyrighted works, image rights and business processes are not registered, and a search for these would therefore have to be conducted using the internet and through general knowledge of the market.
The process for ascertaining whether there is a conflict follows the normal process of determining whether there is an intellectual property infringement.ii Brand protection
There are four ways in which a trademark can be obtained in Denmark:
- registration with the Danish Patent and Trademark Office (DKPTO);
- use in Denmark;
- international World Intellectual Property Organization registration designating Denmark; and
- EU trademark registration with the European Union Intellectual Property Office.
The Danish relative and absolute grounds for refusal are similar to those for EU trademarks. The DKPTO will provide a search report of its findings. An application for trademark registration will not be refused based on relative grounds for refusal.
The Trademarks Act contains a rule about 'trademark theft'. It follows from this provision that registration cannot be obtained for trademarks that are identical or very similar to trademarks that are being used in a foreign country for the same goods or services, if the applicant knew or should have known of this older, foreign mark.
Design rights may also be registered via DKPTO. To be registered a design has to be new and have individual character.iii Enforcement
A trademark proprietor is entitled to start proceedings based on its trademark rights. A franchisee can be a licensee, and a licensee is also entitled to start proceedings in relation to infringements of the trademark right, unless otherwise agreed upon between the licensee and the trademark proprietor. This will, however, change once the new Trademark Directive comes into force, no later than 2019. The licensee shall duly notify the trademark proprietor of such proceedings.
In general the remedies are the following:
- imposition of a court injunction, including a preliminary injunction, on the defendant (i.e., an order to refrain from any – continued – trademark infringement in the future);
- the securing of evidence (similar to an Anton Piller order);
- receiving compensation, in cash or in another form;
- imposition of a court order on the defendant (i.e., an order to do something so as to prevent any threatening – continued – trademark infringement);
- on conviction, having the defendant publish the judgment in whole or in part;
- imposition of a fine on the defendant; and
- surrender of the profit enjoyed as a result of the infringement.
The remedies apply regardless of whether the trademark right has been granted by registration or has been obtained by use.
The enforcement of design rights and copyright also follows the enforcement procedures listed in the EU Enforcement Directive.iv Data protection, cybercrime, social media and e-commerce
The General Data Protection Regulation (GDPR) and the Act on Protection of Personal Data (the Danish Act) apply to the processing of personal data, with the Danish Act providing the supplements and the derogations of the GDPR. The GDPR and the Danish Act entered into force on 25 May 2018 and replaced the former Danish Data Protection Act and the underlying Directive. The GDPR and the Danish Act provide a framework within which the processing of personal data may take place; for example, the principles relating to the processing of personal data, and the legal basis for the processing. By way of example, certain requirements must be met when a data controller (e.g., a franchisee) transfers personal data on customers or employees to a franchisor outside the EU or EEA. Hence, such transfers must be subject to appropriate safeguards as set out in the GDPR. In many respects, the new legislation that entered into force on 25 May 2018 carried on the former requirements for the processing of personal data. However, and by way of example, a principle of accountability was introduced, according to which the aforementioned franchisee must be responsible for, and be able to demonstrate, compliance with the principles applicable to the processing of personal data – an obligation that goes hand in hand with the franchisee's obligation, under certain requirements, to maintain a record of the processing activities that fall within its responsibilities. The GDPR introduces a basis for significant fines, which has raised awareness concerning the processing of personal data and the attendant obligations to be met in this respect.
So far, special rules regarding cybercrime and notification of government authorities in relation to data breaches have only been adopted for the telecommunications sector.
The E-Commerce Act contains certain requirements in relation to identification of the trader and a duty to provide information on relevant aspects when purchasing goods or services online, for instance the name of the trader, its physical address and business registration number. In relation to distance sales, a trader must also provide a consumer with a right of cancellation according to the Consumer Contracts Act.
Finally and more generally, a trader, whether a franchisor or a franchisee or other, must comply with the Marketing Practices Act when performing marketing directed towards the Danish market. The Act requires adherence to the principles of good marketing practices, no use of misleading or undue indications or omission of material information if this is designed to significantly distort consumers' or other traders' economic market behaviour. The Act also applies to advertisements on social media such as the internet if directed towards the Danish market. Furthermore, with respect to advertisements on social media, a main principle of the E-Commerce Act stipulates that traders within the EU or EEA offering information society services – meaning commercial services delivered online – are subject to domestic control, thus a trader in a country within the EU or EEA has to comply with the requirements regarding digital marketing in said country, even though the marketing is targeted at other countries within the EU or EEA.