Most of the laws governing intellectual property rights in Denmark have been harmonized with those of Europe and intellectual property rights are well protected and well respected in Denmark.
Denmark is a member state of the European Union, and is also a member of the World Intellectual Property Organization as well as party to most international treaties and agreements on Intellectual Property Rights, including the Paris Convention, the Bern Convention and TRIPS. The Danish Patent- and Trademark Office (DKPTO) has been very active in forming Patent Prosecution Highway agreements and it is one of the three patent offices behind the Nordic Patent Institute (NPI).
The territories of Greenland and the Faroe Islands are covered by national Danish patents, utility models, designs and trademark registrations, but neither by European patents nor by EU trademarks and designs. As of 2011 International Trademark Registrations through the Madrid Protocol designating Denmark will cover Greenland but not the Faroe Islands. It is expected that new legislation will be implemented within the next couple of years deciding that the Faroe Islands will also be covered by an international designation of Denmark through the Madrid Protocol.
Denmark is a full member of the European Patent Organization , meaning that granted European patents (EP patents) can be validated in Denmark, and the EU patents will also be covering Denmark once the system is in place. If the text of an EP patent is in English, only the patent claims have to be translated into the Danish language in order for the patent to be enforceable in Denmark.
National Danish patent legislation has been largely harmonized with that of the rest of Europe and has strong similarities with the European Patent Convention.
Danish patent applications are filed with the DKPTO, who will then perform a novelty search and a patentability examination. It is not necessary to file a separate request for examination. For first filings a report including a search report and an opinion on patentability will be issued within 6 to 10 months of the date of filing, i.e. well before the 12 months’ priority date. Danish patent applications may be filed and prosecuted in the English language, but the patent claims must be translated into Danish before grant.
The publication of the grant of a Danish patent triggers a 9 months' opposition period, just as for a European patent. When the opposition period has expired, third parties may request cancellation in whole or in part, if they object to the patentability of the invention. This request can be made to either the DKPTO or to the national courts and applies both to national Danish patents and to European patents validated in Denmark.
The DKPTO has established a Patent Prosecution Highway (PPH) with a large number of other patent offices, including the Chinese Intellectual Properties Office (SIPO) and the SIPO-DKPTO highway also applies to work products under the PCT. Since January 2014 the DKPTO has also taken part in the Global PPH system.
The PPH system consists of a number of bilateral agreements made in order to provide applicants with a means for requesting accelerated prosecution of patent applications based on the work products of the respective authorities. More about the PPH system can be found here: www.jpo.go.jp/ppph-portal/index.htm.
The Nordic Patent Institute (NPI) formed by the DKPTO, the Norwegian Industrial Property Office and the Icelandic Patent Office acts both as an International Searching Authority (ISA) and as International Preliminary Examining Authority (IPEA). It also performs Supplementary International Searches (SIS) and if operating in a technical field where national rights from Denmark or other Scandinavian countries are expected to constitute important prior art such a search can provide valuable information.
The DKPTO was among the first patent offices to join the Patent Prosecution Highway (PPH) system originally initiated by the Japanese Patent Office (JPO) in 2006. The PPH system consists of a number of bilateral agreements made in order to provide applicants with a means for requesting accelerated prosecution of patent applications based on the work products of the respective authorities.
The DKPTO joined the PPH system in 2008 by opening a highway with the JPO and has opened a highway with the Korean Intellectual Properties Office (KIPO) in 2009. At the time of writing no PPH agreement has been reached with the China National Intellectual Property Administration (CNIPA), but new PPH agreements continue to be launched. Three of the DKPTO’s highways are eligible for work products under the PCT as well. These are the highways with JPO, USPTO and the Russian Federal Service for Intellectual Property (Rospatent).
Moreover, Denmark is party to the Nordic Patent Institute (NPI): it acts both as an International Searching Authority (ISA) and as International Preliminary Examining Authority (IPEA) and also performs Supplementary International Searches (SIS). If operating in a technical field where national rights from Denmark or other Scandinavian countries are expected to constitute important prior art, such a search might be worthwhile, since such rights are often written in the local languages and risks cannot be found by a non-Scandinavian search authority.
As opposed to many other European countries, it is possible to apply for a utility model in Denmark. Utility models can be granted for products, apparatuses and uses, but not for methods although product-by-process claims are allowable. A utility model can be kept in force for a maximum of 10 years from the filing date.
It is up to the applicant to decide whether the utility model application should be examined with regards to novelty and non-obviousness. If choosing not to request examination the utility model is registered after a few months, but it will not be published until 15 months from the priority date unless early publication is specifically requested.
Un-examined utility models may be examined later upon request. As examination is a prerequisite of enforcing the utility model in a court of law, such a request is typically made by the proprietor, but anybody may request the examination.
Case law has shown that granted and examined utility models are relatively strong weapons, which can be enforced on an equal basis with patents, including the possibility for injunctions.
The entire text of the utility model application must be filed in the Danish language and since May 2015 the utility models also cover the Faroe Islands.
The maximal term of protection for a validated European patent or a national patent is twenty years, but the term of protection for medicinal products and plant protection products can be extended by up to five years depending on the date of the marketing authorization. This is governed by EU legislation.
A Supplementary Protection Certificate (SPC) protects the active compound or combination of compounds which are protected by the patent and which are authorized for sale on the market by the relevant authority, e.g. the European Medicines Agency. The SPC term begins when the patent has expired and cannot exceed five years. A SPC for a medicinal product can, however, be extended by six months if an approved plan for testing the medicinal product has been made and if the plan covers all EU member states.
The application for SPC must be filed no later than 6 months after the issuance of the marketing authorization or the grant of the patent, whichever expires latest.
SPCs must be applied for individually in each of the EU countries.
A new regulation on the European Trademark (EUTMR) entered into force on 23 March 2016. One noteworthy change is the change of name from CTM to EU Trademark which will reflect the geographical extent of the jurisdiction covered better. At the same time OHIM has changed name to EUIPO (EU Intellectual Property Office).
The EU trademark continues to be a multi-class system. However, where the previous basic application fee covered up to three classes, the new basic fee only covers one class with a separate fee for each additional class. This new structure on fees will especially effect renewal fees, as the changes reflect a significant reduction compared to today.
Finally, the new regulation reflects the changes in practice that followed the Court of Justice of the European Union's decision in case C-307/10, "IP Translator".
Thus, a class heading no longer covers all goods or services in a class, but only what can naturally be understood to be covered by the actual wording. Each term in a list of goods and services must be clear and precise in order to be accepted.
The above points are some of the most important and practical changes. There are many more changes and detailed official information to come regarding the changes.
Trademark protection in Denmark Denmark is the only country in the EU in which a trademark right can be established by use alone. Registration is thus not mandatory in order to establish a trademark right. However, it is always recommended due to the ease with which a registered right can be proved to exist. To prove the existence of a trademark established by use alone extensive documentation is needed.
The Danish Patent-and Trademark Office is rather efficient and a trademark right can usually be obtained in as little as five to eight months.
Trademarks can consist of words, names, devices, certain three-dimensional shapes, slogans, colors, sounds as well as trade dress. In addition to the classic trademark registration, it is possible to obtain rights to collective marks, certification marks and service marks. Trademarks which are contrary to moral standards or ordre publique are not registrable, just as generic terms, geographical names or flags, emblems and symbols of state are not registrable.
Non-distinctive trademarks can only obtain registration if acquired distinctiveness through use can be proven.
In Denmark it is possible to obtain trademark registration for retail services provided the nature of the services in question is clearly defined.
If the applicant is not domiciled in Denmark or in another EU member state, the application must be filed through a local representative. No power of attorney is needed and neither legalization nor notarization is required.
As with most countries in the EU, it is possible to claim priority when filing an application for a national Danish trademark, provided the application is filed within the six months' deadline. International registrations can be based on national Danish registrations, just as Denmark can be designated in international registrations through the Madrid Protocol.
Once a national Danish trademark application has been filed, it will be examined for formalities, classification, clarity, descriptiveness, distinctiveness, deceptiveness or conflicts with earlier rights. If such earlier rights are found the applicant is notified, but the citation in itself is not a ground for refusal. If the holder of an earlier right wishes to block an application, he must file an opposition. It is therefore strongly advised to establish a watch service for registered trademarks to ensure that the client is notified of any new trademark applications which ought to be opposed.
Once the application has been duly examined, the trademark is published and a two-month opposition period begins. If no opposition is filed before the expiry of the deadline the trademark registration is considered final.
An opposition against an applied for trademark can be based on prior rights such as a conflicting trademark registration, but can also be based on arguments that the trademark is not distinctive, that it is misleading, deceptive or disparaging, that it is a breach of copyright or rights to a personal name, company name or design rights. An opposition can also be founded on international rules concerning unauthorized use of national protected emblems, flags, etc.
As in most of the EU, a registered trademark right can be licensed in whole or in part, the license can be exclusive or non-exclusive and the license agreement need not be recorded in order to be effective.
A national Danish trademark registration confers on the owner the sole right to use the registered trademark for the goods and/or services covered by the registration. Also, the holder has the right to oppose subsequent conflicting trademarks, the right to sue for infringement against confusingly similar trademarks, the right to apply for seizure by the customs authorities in case of importation of counterfeited goods and of course the right to license the trademark, sell it etc.
The initial term of the registration is 10 years from the registration date, after which the registration must be renewed every 10 years. 5 years after the registration date, the trademark becomes subject to use requirements. The trademark then becomes vulnerable to cancellation actions based on non-use of the trademark. If use cannot be proven, the trademark will be cancelled either in its entirety or for the specific goods and/or services for which use cannot be proven. We therefore highly recommend saving documentation material in order to be prepared for such cancellation actions.
Following the European Courts of Justice's decision in the matter of IP TRANSLATOR in the summer of 2012 the Danish PTO has in corporation with the remaining trademark authorities in EU formulated a list of imprecise terms in the Nice Classification, and a new common practice has been implemented. It is therefore advisable to seek qualified assistance prior to filing.
It is possible to obtain national design rights in Denmark.
A design can be almost anything, as long as it is not technical in nature. Classic examples of design are jewelry, packaging, tools, toys, furniture or household appliances. It can also be the visual appearance of a website or an application for smart phones. Functional and technical features cannot be protected through a design; however, it might be eligible for protection as a patent or utility model.
The requirements for obtaining a design registration in Denmark are fairly simple. The design must be novel and it must have individual character.
A 12-month grace period allows the proprietor of a design to test the market value of the design by publishing the design by e.g. putting it on the market. This will not damage the novelty of the design after Danish law. Care should be taken, however, as the proprietor risks damaging his chances of registering the design abroad. It should be noted that this grace period does only apply for Denmark, not EU designs.
To obtain a design registration in Denmark, an application must be filed with the Danish Patent-and Trademark Office, either by the applicants themselves if they are domiciled in the EU, or via a local representative.
The application must contain information on the applicant, pictures showing the design and possible priority information. The pictures of the design may be drawings, photographs, computer generated images or other.
Once the application has been filed it will be examined in respect of formalities.
A novelty search can be conducted upon request, but does not automatically form part of the application procedure.
If the formalities are all found to be in order, the design will be published for opposition. There is an opposition period of two months, after which the registration will become final.
An opposition against an application for a design registration can be based on lack of novelty, lack of distinctive character or that the formalities are not fulfilled.
A registered design right in Denmark confers on its owner the sole right to exploit the design in the course of trade. It does not protect against the actions of private individuals, who reproduce a design for their own use and enjoyment.
Once a design has been registered, it has a maximum lifespan of 25 years. It must be renewed after every five-year period in order to remain in force.
Provided by Maria Dam Jensen, Attorney at Law; Vibeke Warberg Rohde; European Patent Attorney
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